Case Note & Summary
The case involves a second appeal filed by the original plaintiffs (Sanjay Babu Kadam and Sou. Subhadra Babu @ Shankar Kadam) against the judgment of the lower appellate court dated 13.05.1991 in Regular Civil Appeal No. 289 of 1984. The dispute arises from a partition suit (Regular Civil Suit No. 264 of 1979) concerning joint family properties. The trial court on 11.04.1984 passed a decree for partition and separate possession, including house property No.11 in the partition, holding that the sale of that property by defendant No.1 to defendant No.15 was without legal necessity. Both parties appealed: the plaintiffs filed Regular Civil Appeal No. 266 of 1984, which was dismissed; defendant No.1 filed Regular Civil Appeal No. 289 of 1984, which was partly allowed by the lower appellate court, which deleted house property No.11 from the partition, finding that the sale was for legal necessity. The plaintiffs then filed the present second appeal. The High Court noted that the second appeal was admitted on 11.03.1993 without framing any substantial question of law. On 06.04.2015, the court directed that the appeal be heard for admission to determine if any substantial question of law arises. The court observed that the only dispute in the second appeal pertains to house property No.11. The lower appellate court had reversed the trial court's finding on legal necessity, holding that the sale was for legal necessity and that the plaintiffs had no personal knowledge of the absence of such necessity. The High Court concluded that the finding of legal necessity is a question of fact and does not give rise to any substantial question of law. Consequently, the second appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court examined whether the second appeal admitted without framing substantial question of law could be heard. The court noted that the appeal was admitted without framing substantial question of law and was listed for final hearing without any such question being framed. The court held that the finding of legal necessity for sale by Karta is a question of fact and cannot be interfered with in second appeal unless perverse. (Paras 2-3) B) Hindu Law - Partition - Legal Necessity for Sale by Karta - Joint Family Property - The dispute pertained to house property No.11 sold by defendant No.1 to defendant No.15. The trial court held the sale was without legal necessity, but the lower appellate court reversed, finding legal necessity established. The High Court held that the finding of legal necessity is a question of fact and the second appeal does not raise any substantial question of law. (Paras 1-3)
Issue of Consideration
Whether the second appeal involves any substantial question of law warranting interference with the findings of the lower appellate court regarding legal necessity for sale of joint family property.
Final Decision
Second appeal dismissed. No substantial question of law involved.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- legal necessity for sale by Karta
- partition suit
- joint family property
