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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 outsider to inherit his/her share in properties and if so, its effect. Whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Whether all properties are included in the suit and all co-sharerers, coparceners, co-owners or joint-owners, as the case may be, are made parties to the suit?The above are material issues for proper disposal of the partition suit and same 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. The Court is required to go through the merits of the claim of the respective parties in proper perspective and then to record a finding regarding extent of shares received by each 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., after due appreciation of evidence keeping as per the provisions of Hindu Succession Act and other related laws applicable to the issues arising in the case.ReportableIN THE SUPREME COURT OF INDIACIVIL APPELALTE JURISDICTIONCIVIL APPEAL No. 324 OF 2015(ARISING OUT OF SLP(C) No.14024/2013)Shasidhar & OthersVsSmt. Ashwini Uma Mathad & Anr.Abhay Manohar Sapre, J.Dated;January 13, 2015.12. This appeal is filed by the defendants againstthe judgment and order dated 06.12.2012 passedPage 1by the Division Bench of the High Court ofKarnataka Circuit Bench at Dharwad in RegularFirst Appeal No. 3052 of 2010, which in turn arisesout of the judgment and decree dated 10.02.2010passed by the Ist Additional Civil Judge (Sr.Division) at Hubli in Original Suit No. 73 of 2004.3.Inordertoappreciatetheshortissueinvolved in this appeal, it is necessary to state afew relevant facts:4.One Basavantayya Revanayya Mathad wasmarried to Shantakka Mathad (defendant no. 2).Out of this wedlock, three children were born - onesonShashidhar(defendantno.1)andtwodaughters - Rajeshwari (Died in 2003) and -Gayatri(Diedin2004)-defendantno.3.Shashidhar was married to Uma and out of thiswedlock, three daughters were born - Ashwini(plaintiff no. 1), Nivedita (plaintiff no.2) and Pujawho was given in adoption to Uma's sister.2Page 2Shashidhar divorced to Uma and re-married toManjula (defendant no.4). Out of this secondmarriage, two daughters were born - Aishwarya(defendant no.5) and Vaishnavi (defendant no.6).5.Basavantayya had extensive properties. On21.07.1991, Basavantayya died leaving behindhim the aforementioned members of his family. Onhis death and also on the death of his oneunmarried daughter Rajeshwari, disputes arosebetween his legal representatives regarding theirrespective shares in the properties and alsoregarding ownership of some members of hisfamily in relation to certain properties standing inthe name of members of his family. The disputesunfortunately could not be settled amicably whichled to filing of civil suit by the daughters ofdefendant No.1 from his first wife-Uma (deceased)against the other members of the family, i.e., theirfather,step-motherandstep-sistersfor3Page 3determination of their respective shares, partitionby meets and bounds and separate possession inthe suit properties held and possessed by themembers of the family of late Basavantayya . Thedefendants contested the civil suit by denying theplaintiffs claim.The trial Court framed issues.Parties adduced evidence.6.By judgment and decree dated 10.02.2010,the trial Court partly decreed the plaintiffs suitand accordingly passed preliminary decree inrelation to the suit properties. It was held thatplaintiffs are entitled for partition and separatepossession of their 1/6th share each in someproperties specified in the decree whereas 1/10thshare each in other suit properties as specified inthe decree.7.Dissatisfied with the preliminary decree, thedefendants filed first appeal being R.F.A. No. 3052of 2010 and the plaintiffs filed cross objections4Page 4being R.F.A. CROB No. 103 of 2011 under OrderXLI Rule 22 of the Civil Procedure Code, 1908 (inshort the Code).This is how the entirepreliminary decree became the subject-matter offirst appeal filed by the defendants.8.By impugned judgment and order dated06.12.2012, the Division Bench of the High Courtdisposed of the appeal and cross objections andmodified the judgment and decree of the trialcourt to the detriment of the defendants. It isagainst this judgment and order, the defendantshave filed this appeal by way of special leave.9.Learned Counsel for the appellants, whileassailing the legality and correctness of theimpugned judgment, contended that the HighCourt without adverting to all the factual detailsand various grounds raised in the first appeal,disposed of the same in a cryptic manner.According to learned counsel, the High Court5Page 5neither dealt with any issue nor appreciated theocular and documentary evidence adduced by thepartiesnorexaminedthelegalapplicable to the issues arising in theprinciplescase andnor rendered its findings on any contentious issuesthough urged by the appellants herein in supportof the appeal. Learned counsel further contendedthat it was the duty of the High Court being thefirst appellate Court exercising its appellate powerunder Section 96 read with Order XLI Rule 31 ofthe Codewhichto have dealt with the submissions,wereappreciatingurgedthebyentiretheappellantsevidenceonafterfacts,independent of the findings recorded by the trialCourt and should have come to its own conclusionkeeping in view the legal principles governing theissues and since it was not done by the HighCourt, the impugned judgment is not legallysustainable. Lastly, the learned counsel urged that6Page 6in case his arguments are accepted, the remand ofthe case to the High Court to decide the appeal onmerits afresh is inevitable.10. Incontra,learnedcounselfortherespondents (plaintiffs) vehemently urged that nointerference in the impugned judgment is calledforbecause firstly,renderedthethejudgmentfirst appellateontheCourtappellantsconcession and hence, it was not necessary for theHigh Court to record any elaborate finding on anyof the issues; secondly, the suit is pending sincetwodecadeswithnoendandlastly,thedetermination of the shares of the suit propertiesmade by the High Court, if examined on merits bythis Court, would be found to be in accordancewith law.11. Having heard learned counsel for the partiesand on perusal of the record of the case andexamining the issue arising in this appeal, we find7Page 7force in the submissions of the learned counsel forthe appellants.12. The powers of the first appellate Court, whiledeciding the first appeal under Section 96 readwith Order XLI Rule 31 of the Code, are indeed welldefined by various judicial pronouncements of thisCourt and are, therefore, no more res integra.13. As far back in 1969, the learned Judge V.R.Krishna Iyer, J (as His Lordship then was the judgeof Kerala High Court) while deciding the firstappeal under Section 96 of the CPC in KurianChacko vs. Varkey Ouseph, AIR1969 Kerala316, reminded the first appellate Court of its dutyas to how the first appeal under Section 96 shouldbe decided. In his distinctive style of writing andsubtle power of expression, the learned judge heldas under:1. The plaintiff, unsuccessful in twoCourts, has come up here aggrieved bythe dismissal of his suit which was one fordeclaration of title and recovery ofpossession. The defendant disputed the8Page 8plaintiff's title to the property as also hispossession and claimed both in himself.The learned Munsif, who tried the suit,recorded findings against the plaintiffboth on title and possession. But, inappeal, the learned Subordinate Judgedisposed of the whole matter glibly andbriefly, in a few sentences.2. An appellate court is the final Court offact ordinarily and therefore a litigant isentitled to a full and fair and independentconsideration of the evidence at theappellate stage. Anything less than this isunjust to him and I have no doubt that inthe present case the learned SubordinateJudge has fallen far short of what isexpected of him as an appellate Court.Although there is furious contest betweenthe counsel for the appellant and for therespondent, they appear to agree with mein this observation.....(Emphasissupplied)14. This Court in a number of cases whileaffirmingandthenreiteratingtheaforesaidprinciple has laid down the scope and powers ofthe first appellate Court under Section 96 of theCode.15. We consider it apposite to refer to some ofthe decisions.16. InSantosh Hazari vs. Purushottam Tiwari(Deceased) by L.Rs. (2001) 3 SCC 179, this Court9Page 9held (at pages 188-189) as under:.........the appellate court has jurisdictionto reverse or affirm the findings of thetrial court. First appeal is a valuable rightof the parties and unless restricted bylaw, the whole case is therein open forrehearing both on questions of fact andlaw. The judgment of the appellate courtmust, therefore, reflect its consciousapplication of mind and record findingssupported by reasons, on all the issuesarising along with the contentions putforth, and pressed by the parties fordecision of the appellate court......whilereversing a finding of fact the appellatecourt must come into close quarters withthe reasoning assigned by the trial courtand then assign its own reasons forarriving at a different finding. This wouldsatisfy the court hearing a further appealthat the first appellate court haddischargedthedutyexpectedofit............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 as a court offirst appeal, it is the duty of the High Court to dealwith all the issues and the evidence led by theparties before recording its findings.18. In H.K.N. Swami v. Irshad Basith,(2005)10Page 1010 SCC 243, this Court (at p. 244) stated as under:3. The first appeal has to be decidedon facts as well as on law. In the firstappeal parties have the right to be heardboth on questions of law as also on factsand the first appellate court is required toaddress itself to all issues and decide thecase by giving reasons. Unfortunately,the High Court, in the present case hasnot recorded any finding either on factsor on law. Sitting as the first appellatecourt it was the duty of the High Court todeal with all the issues and the evidenceled by the parties before recording thefinding regarding title.19. Again in Jagannath v. Arulappa & Anr.,(2005) 12 SCC 303, while considering the scope ofSection 96 of the Codethis Court (at pp. 303-04)observed as follows:2.Acourtoffirstappealcanreappreciate the entire evidence andcome to a different conclusion.........20. Again in B.V Nagesh & Anr. vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530, thisCourt taking note of all the earlier judgments ofthis Court reiterated the aforementioned principlewith these words:be3. How the regular first appeal is todisposedofbytheappellate11Page 11court/High Court has been considered bythis Court in various decisions. Order 41CPC deals with appeals from originaldecrees. Among the various rules, Rule 31mandates that the judgment of theappellate court shall state:(a) the points for determination;(b) the decision thereon;(c) the reasons for the decision; and(d) where the decree appealed from isreversed or varied, the relief to which theappellant is entitled.4. The appellate court has jurisdictionto reverse or affirm the findings of thetrial court. The first appeal is a valuableright of the parties and unless restrictedby law, the whole case is therein open forrehearing both on questions of fact andlaw. The judgment of the appellate courtmust, therefore, reflect its consciousapplication of mind and record findingssupported by reasons, on all the issuesarising along with the contentions putforth, and pressed by the parties fordecision of the appellate court. Sitting asa court of first appeal, it was the duty ofthe High Court to deal with all the issuesand the evidence led by the partiesbefore recording its findings. The firstappeal is a valuable right and the partieshave a right to be heard both onquestions of law and on facts and thejudgment in the first appeal must addressitself to all the issues of law and fact anddecide it by giving reasons in support ofthe findings. (Vide Santosh Hazari v.Purushottam Tiwari, (2001) 3 SCC 179 atp. 188, para 15 and Madhukar v.Sangram, (2001) 4 SCC 756 at p. 758,para 5.)5. In view of the above salutaryprinciples,ongoingthroughtheimpugned judgment, we feel that theHigh Court has failed to discharge the12Page 12obligation placed on it as a first appellatecourt. In our view, the judgment underappeal is cryptic and none of the relevantaspects have even been noticed. Theappealhasbeendecidedinanunsatisfactorymanner.Ourcarefulperusal of the judgment in the regularfirst appeal shows that it falls short ofconsiderations which are expected fromthe court of first appeal. Accordingly,without going into the merits of the claimof both parties, we set aside theimpugned judgment and decree of theHigh Court and remand the regular firstappeal to the High Court for its freshdisposal in accordance with law.21. The aforementioned cases were relied uponby this Court while reiterating the same principlein State Bank of India & Anr. vs. EmmsonsInternational Ltd. & Anr., (2011) 12 SCC 174.This Court has recently taken the same view onsimilarfactsarisinginVinodKumarvs.Gangadhar, 2014(12) Scale 171.22. Applying the aforesaid principle to the factsof the case, we find that the High Court whiledeciding the first appeal failed to keep theaforesaid principle in consideration and renderedthe impugned decision. Indeed, it is clear by mere13Page 13reading of the impugned order quoted below:The appellants are defendants in thesuit. The plaintiffs are the respondents.The respondents are the children of 1 stappellant born in the wedlock between 1 stappellant and his divorced wife Smt. UmaMathad. It is admitted fact that the 1 stappellant has married the 2nd respondentafter the divorce and in the wedlock hehas two children and they are appellantNos.3 and 4. The suit properties at itemNos.1 and 4 are admitted to be theancestral properties. Item Nos.2 and 3are the properties belonging to themother of the 1st appellant and after herdemisethesaidpropertiesarebequeathed to 1st appellant. Therefore,the said properties acquired the status ofself-acquired properties.The respondents filed a suit for partition.The parties are governed by BombaySchool of Hindu Law.In view of theprovisionsofHinduSuccessionAmendment Act of 2005, the respondentNos. 1 and 2 are entitled to a share asco-parceners in the ancestral properties.The wife who is the second appellant alsowould be entitled to a share in thepartition. In that view, the appellant Nos.1 and 2 and respondent Nos.1 and 2 willhave 1/4th share each in item Nos.1 and 4of the suit properties.The learned counsel for the appellantssubmitted that the appellants 2 to 4would not claim any independent share initem Nos.1 and 4 of the suit properties,but they would take share in the 1/4 thshare allotted to their father.In view of the said submissions, theappellant Nos.1 and 2 and respondentNos.1 and 2 would be entitled to 1/4 th14Page 14share in item Nos.1 and 4 of the suitproperties.Accordingly, a preliminary decree to bedrawnandtheappealandcrossobjections are disposed of in the termsindicated above.23. In our considered opinion, the High Court didnot deal with any of the submissions urged by theappellants and/or respondents nor it took note ofthe grounds taken by the appellants in grounds ofappeal nor took note of cross objections filed byplaintiffs under Order XLI Rule 22 of the Code andnor made any attempt to appreciate the evidenceadduced by the parties in the light of the settledlegal principles and decided case laws applicableto the issues arising in the case with a view to findout as to whether the judgment of the trial Courtcan be sustained or not and if so, how, and if not,why?24. We may consider it apposite to state being awell settled principle of law that in a suit filed by aco-sharerer, coparcener, co-owner or joint owner,15Page 15as the case may be, for partition and separatepossession of his/her share qua others, it isnecessary for the Court to examine, in the firstinstance,thenatureandcharacteroftheproperties in suit such as who was the originalowner of the suit properties, how and by whichsource he/she acquired such properties, whether itwas his/her self-acquired property or ancestralproperty, or joint property or coparcenery propertyin his/her hand and, if so, who are/were thecoparceners or joint owners with him/her as thecase may be.his/herSecondly, how the devolution ofinterestconsequentuponinthe propertyhis/her deathtookonplacesurvivingmembers of the family and in what proportion,whether he/she died intestate or left behind anytestamentary succession in favour of any familymember or outsider to inherit his/her share inproperties and if so, its effect.Thirdly whether16Page 16the properties in suit are capable of beingpartitioned effectively and if so, in what manner?Lastly, whether all properties are included in thesuit and all co-sharerers, coparceners, co-ownersor joint-owners, as the case may be, are madeparties to the suit? These issues, being materialfor proper disposal of the partition suit, have to beanswered by the Court on the basis of family tree,inter se relations of family members, evidenceadduced and the principles of law applicable to thecase. (see Hindu Law by Mulla 17th Edition,ChapterXVIPartitionandReunionMitakshara Law pages 493-547).25. BeingthefirstappellateCourt,itwas,therefore, the duty of the High Court to decide thefirst appeal keeping in view the scope and powersconferred on it under Section 96 read with OrderXLI Rule 31 of the Code mentioned above. It wasunfortunately not done, thereby, causing prejudice17Page 17totheappellantswhosevaluablerighttoprosecute the first appeal on facts and law wasadversely affected which, in turn, deprived themof a hearing in the appeal in accordance with law.26. We are not inclined to accept the submissionof the learned counsel for the respondents whenhe urged that the impugned judgment is based onconcession given by the appellants and hence nodiscussion on merits on any of the issues wascalled for. In the first place, the appellants did notmake any application for settlement of the disputein relation to any of the suit property in writingand secondly, there is nothing on record to showthat the appellants wanted to give up their claimor/and wished to settle the matter in relation tosome properties. In the light of this, we are of theview that the High Court ought to have gone intothe merits of the claim of the respective parties inits proper perspective and then recorded a finding18Page 18regarding extent of shares received by eachcoparcener/co-owner keeping in view the nature ofproperties such as whether it was self acquiredproperty or ancestral property and, if so, in whosehands, its source of acquisition by such person,themannerofdevolutiononthelegalrepresentatives of such person etc. As observedsupra, these findings were required to be recordedafter appreciating the evidence keeping in viewthe provisions of the Hindu Succession Act andother related laws applicable to the issues arisingin the case.27. It is for these reasons, we are unable touphold the impugned judgment of the High Court.28. The appeal thus succeeds and is, accordingly,allowed. The impugned judgment is set aside andthe case is remanded to the High Court fordeciding the first appeal and cross-objectionsafresh, keeping in view the principle of law laid19Page 19down by this Court as mentioned above.29. However, we make it clear that we have notapplied our mind to the merits of the issuesinvolved in the case and hence, the High Courtwould decide the appeal strictly in accordancewith law on merits uninfluenced by any of ourobservations,whichwehaverefrainedfrommaking on merits. Needless to observe, the HighCourt will do so after affording an opportunity ofhearing to all the parties.30. Since the case is quite old, we request theHigh Court to expedite its hearing and dispose ofthe case preferably within six months..............................................................J.[FAKKIR MOHAMED IBRAHIM KALIFULLA]...............................................................J.[ABHAY MANOHAR SAPRE]New Delhi;January 13, 2015.Print Page You might also like: Basic principles for determining mense profits Basic principles for determining nature of injury Whether party can file fresh suit for partition after withdrawal of first suit without obtaining liberty from court? When plaintiff can not withdraw suit for partition? 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