As observed supra, we do not agree with the
reasoning and the conclusion arrived at by the High
Court in the impugned order. In our considered
view, the appeal did involve the substantial
questions of law and, therefore, the High Court
should have admitted the appeal by first framing
substantial questions of law arising in the case and
then after giving notice to the respondents for its
final hearing as provided under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”) decided the appeal on merits.
16) As a matter of fact, in our view, having regard
to the nature of controversy and the issues involved
regarding ownership based on interpretation of
documents (exhibits), the questions did constitute
substantial questions of law.
17) The questions as to whether the suit property
is self-acquired property of late Sk. Noor
Mohammad and, if so, whether respondent No.1
was entitled to inherit the same as his legal
representative in accordance with the shares defined
in the Mohammedan Law and secondly, whether the
suit property is self-acquired property of the
appellant (defendant No.1) on the strength of
documents filed by him and, if so, whether it has
resulted in excluding respondent No.1 to claim any
share in such property as an heir of Sk. Noor
Mohammad, was required to be decided by framing
substantial questions of law in the light of proved
documents filed by defendant No.1 because it was
his case that the suit property was his self-acquired
property. The High Court unfortunately did not
examine any document for deciding the ownership
issue in relation to the suit property.
18) When the Court is called upon to interpret the
documents and examine its effect, it involves
questions of law. It is, therefore, obligatory upon
the High Court to decide such questions on merits.
In this case, the High Court could do so after
framing substantial questions of law as required
under Section 100 of the Code. It was, however, not
done.
19) The High Court thus, in our view, committed
jurisdictional error when it dismissed the second
appeal in limine. We cannot countenance the
approach of the High Court.
20) In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside. The case is now remanded to the High Court
for deciding the appeal on merits in accordance with
law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3048 OF 2017
(ARISING OUT OF SLP (C) No.27887/2010)
Sk. Bhikan
S/o Sk. Noor Mohd
V
Mehamoodabee
w/o Sk. Afzal & Ors
Dated:February 20, 2017
2) This appeal is filed against the final judgment
and order dated 09.02.2010 passed by the High
Court of Judicature at Bombay Bench at
Aurangabad in Second Appeal No. 875 of 2009
whereby the second appeal filed by the appellant
herein was dismissed at the admission stage.
3) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
4) The appellant herein is the first defendant and
respondent No. 1 herein is the plaintiff whereas
respondent Nos. 2 to 8 herein are defendant Nos. 2
to 8 in the suit.
5) The dispute in the appeal arises between the
members (brother and sister) of one Muslim family.
It relates to landed and house properties situated at
village Satara, District Aurangabad (Maharashtra)
as detailed in Para 1 of the plaint (hereinafter
referred to as the "suit property”).
6) Respondent No. 1 is the real sister of the
appellant. She filed a civil suit against the
appellant and respondent Nos. 2 to 8 (proforma
defendants) in the Court of IInd Jt. Civil Judge
(J.D.) at Aurangabad being Civil Suit No. 120 of
1994 and prayed therein the relief of partition by
meets and bounds of the suit property and, in
consequence, also claimed her separate possession
in the suit property qua the appellant.
7) According to respondent No. 1 (plaintiff), the
suit property was owned by their late father Sheikh
Noor Mohd. and on his death, respondent No. 1, by
virtue of inheritance and being one of his legal
heirs, got share in the suit property as per the
shares defined in the Mohammedan Law.
Respondent No.1 alleged that since her father died
intestate leaving behind respondent No.1 and the
appellant being sister and brother, she is entitled to
claim partition of the suit property and its separate
possession as tenant in common as against her
brother (appellant herein).
8) The appellant denied the case set up by
respondent No.1 and contended, inter alia, in his
written statement that the suit property is his
self-acquired property because he purchased the
same by his own efforts by a registered sale deed
(Ex.P-1) and hence neither his late father had any
right, title or interest in the said property and, in
consequence thereof, nor respondent No.1 could
3Page 4
inherit any right, title or interest in the suit property
through her father as his legal heir. The appellant
also set up a title by alleging his adverse possession
over the suit property to the exclusion of all
including respondent No.1.
9) The Trial Court framed issues and parties
adduced their evidence. By a judgment/decree
dated 24.12.1999, the Trial Court dismissed the
suit filed by respondent No.1. Respondent No.1
(plaintiff), felt aggrieved, filed first appeal being
R.C.A. No. 59 of 2000 before the District Judge,
Aurangabad. By a judgment/decree dated
30.11.2001, the District Judge allowed the appeal
and decreed the plaintiff's suit and accordingly
passed a decree for partition and separate
possession of the suit property in favour of
respondent No.1.
10) Felt aggrieved, appellant (defendant No. 1) filed
second appeal being S.A. No.875 of 2009 before the
High Court. By impugned order, the High Court
4Page 5
dismissed the second appeal in limine observing that
the appeal does not involve any substantial question
of law.
11) Felt aggrieved, defendant No.1 has filed this
appeal by way of special leave before this Court.
12) Heard Mr. Shyam Divan, learned senior
counsel for the appellant and Mr. Makarand D.
Adkar, learned counsel for the respondents.
13) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and remand the
case to the High Court for deciding the second
appeal afresh on merits in accordance with law.
14) Learned Single Judge while dismissing the
appeal passed the following order:
“1) The appeal is filed mainly against the
findings recorded by the first appeal Court
that the respondent-plaintiff was entitled to
1/3rd share in the suit property being the
daughter of Noor Mohammed who is also the
father of the appellant. The fact that Noor
Mohammed, the father of the parties held the
suit properties at the time of his death is not
in dispute so also Noor Mohammed died
without leaving a testament is also an
admitted fact. Thus, the appellant and the
5Page 6
respondent being the brother and sister
would take the property, left behind by their
father as per provisions of the Mohammedan
Law. The appellant, thus would get two parts
of the suit property, whereas the third part
would go to the respondent no.1-original
plaintiff.
2) The findings recorded by the learned
Judge of the first appeal Court are cogent.
No interference in them is called for. There
is no substantial question of law, arising in
this appeal. The second appeal stands
dismissed. Consequently, Civil Application
Nos. 4980 of 2005 and 9547 of 2003 also
stand dismissed.”
15) As observed supra, we do not agree with the
reasoning and the conclusion arrived at by the High
Court in the impugned order. In our considered
view, the appeal did involve the substantial
questions of law and, therefore, the High Court
should have admitted the appeal by first framing
substantial questions of law arising in the case and
then after giving notice to the respondents for its
final hearing as provided under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”) decided the appeal on merits.
16) As a matter of fact, in our view, having regard
to the nature of controversy and the issues involved
regarding ownership based on interpretation of
documents (exhibits), the questions did constitute
substantial questions of law.
17) The questions as to whether the suit property
is self-acquired property of late Sk. Noor
Mohammad and, if so, whether respondent No.1
was entitled to inherit the same as his legal
representative in accordance with the shares defined
in the Mohammedan Law and secondly, whether the
suit property is self-acquired property of the
appellant (defendant No.1) on the strength of
documents filed by him and, if so, whether it has
resulted in excluding respondent No.1 to claim any
share in such property as an heir of Sk. Noor
Mohammad, was required to be decided by framing
substantial questions of law in the light of proved
documents filed by defendant No.1 because it was
his case that the suit property was his self-acquired
property. The High Court unfortunately did not
examine any document for deciding the ownership
issue in relation to the suit property.
18) When the Court is called upon to interpret the
documents and examine its effect, it involves
questions of law. It is, therefore, obligatory upon
the High Court to decide such questions on merits.
In this case, the High Court could do so after
framing substantial questions of law as required
under Section 100 of the Code. It was, however, not
done.
19) The High Court thus, in our view, committed
jurisdictional error when it dismissed the second
appeal in limine. We cannot countenance the
approach of the High Court.
20) In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside. The case is now remanded to the High Court
for deciding the appeal on merits in accordance with
law.
21) We, however, request the High Court to admit
the second appeal, frame appropriate substantial
questions of law as required under Section 100 of
the Code, keeping in view the pleadings, findings of
the two courts below and the documents (exhibits).
Needless to say, the questions to be framed should
be specific with reference to exhibits and the
findings of the two courts below.
22) Before parting, we consider it proper to
mention here that we have not expressed any
opinion on the merits of the controversy and
confined our inquiry only to examine whether the
second appeal involved any substantial question of
law within the meaning of Section 100 of the Code?
23) We have noticed that the dispute is between
the members of one family. It would, therefore, be
in the interest of family that efforts should be made
to settle the dispute amicably. Indeed, it was also
stated by learned counsel for the parties before us
by giving some offer to each other. We grant this
liberty to renew their respective offers before the
High Court and explore the possibility for amicable
settlement before finally hearing the appeal
preferably within six months.
24) Record of the case, if requisitioned, be sent
back to the High Court forthwith by the Registry.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
February 20, 2017
Print Page
reasoning and the conclusion arrived at by the High
Court in the impugned order. In our considered
view, the appeal did involve the substantial
questions of law and, therefore, the High Court
should have admitted the appeal by first framing
substantial questions of law arising in the case and
then after giving notice to the respondents for its
final hearing as provided under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”) decided the appeal on merits.
16) As a matter of fact, in our view, having regard
to the nature of controversy and the issues involved
regarding ownership based on interpretation of
documents (exhibits), the questions did constitute
substantial questions of law.
17) The questions as to whether the suit property
is self-acquired property of late Sk. Noor
Mohammad and, if so, whether respondent No.1
was entitled to inherit the same as his legal
representative in accordance with the shares defined
in the Mohammedan Law and secondly, whether the
suit property is self-acquired property of the
appellant (defendant No.1) on the strength of
documents filed by him and, if so, whether it has
resulted in excluding respondent No.1 to claim any
share in such property as an heir of Sk. Noor
Mohammad, was required to be decided by framing
substantial questions of law in the light of proved
documents filed by defendant No.1 because it was
his case that the suit property was his self-acquired
property. The High Court unfortunately did not
examine any document for deciding the ownership
issue in relation to the suit property.
18) When the Court is called upon to interpret the
documents and examine its effect, it involves
questions of law. It is, therefore, obligatory upon
the High Court to decide such questions on merits.
In this case, the High Court could do so after
framing substantial questions of law as required
under Section 100 of the Code. It was, however, not
done.
19) The High Court thus, in our view, committed
jurisdictional error when it dismissed the second
appeal in limine. We cannot countenance the
approach of the High Court.
20) In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside. The case is now remanded to the High Court
for deciding the appeal on merits in accordance with
law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3048 OF 2017
(ARISING OUT OF SLP (C) No.27887/2010)
Sk. Bhikan
S/o Sk. Noor Mohd
V
Mehamoodabee
w/o Sk. Afzal & Ors
Dated:February 20, 2017
and order dated 09.02.2010 passed by the High
Court of Judicature at Bombay Bench at
Aurangabad in Second Appeal No. 875 of 2009
whereby the second appeal filed by the appellant
herein was dismissed at the admission stage.
3) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
4) The appellant herein is the first defendant and
respondent No. 1 herein is the plaintiff whereas
respondent Nos. 2 to 8 herein are defendant Nos. 2
to 8 in the suit.
5) The dispute in the appeal arises between the
members (brother and sister) of one Muslim family.
It relates to landed and house properties situated at
village Satara, District Aurangabad (Maharashtra)
as detailed in Para 1 of the plaint (hereinafter
referred to as the "suit property”).
6) Respondent No. 1 is the real sister of the
appellant. She filed a civil suit against the
appellant and respondent Nos. 2 to 8 (proforma
defendants) in the Court of IInd Jt. Civil Judge
(J.D.) at Aurangabad being Civil Suit No. 120 of
1994 and prayed therein the relief of partition by
meets and bounds of the suit property and, in
consequence, also claimed her separate possession
in the suit property qua the appellant.
7) According to respondent No. 1 (plaintiff), the
suit property was owned by their late father Sheikh
Noor Mohd. and on his death, respondent No. 1, by
virtue of inheritance and being one of his legal
heirs, got share in the suit property as per the
shares defined in the Mohammedan Law.
Respondent No.1 alleged that since her father died
intestate leaving behind respondent No.1 and the
appellant being sister and brother, she is entitled to
claim partition of the suit property and its separate
possession as tenant in common as against her
brother (appellant herein).
8) The appellant denied the case set up by
respondent No.1 and contended, inter alia, in his
written statement that the suit property is his
self-acquired property because he purchased the
same by his own efforts by a registered sale deed
(Ex.P-1) and hence neither his late father had any
right, title or interest in the said property and, in
consequence thereof, nor respondent No.1 could
3Page 4
inherit any right, title or interest in the suit property
through her father as his legal heir. The appellant
also set up a title by alleging his adverse possession
over the suit property to the exclusion of all
including respondent No.1.
9) The Trial Court framed issues and parties
adduced their evidence. By a judgment/decree
dated 24.12.1999, the Trial Court dismissed the
suit filed by respondent No.1. Respondent No.1
(plaintiff), felt aggrieved, filed first appeal being
R.C.A. No. 59 of 2000 before the District Judge,
Aurangabad. By a judgment/decree dated
30.11.2001, the District Judge allowed the appeal
and decreed the plaintiff's suit and accordingly
passed a decree for partition and separate
possession of the suit property in favour of
respondent No.1.
10) Felt aggrieved, appellant (defendant No. 1) filed
second appeal being S.A. No.875 of 2009 before the
High Court. By impugned order, the High Court
4Page 5
dismissed the second appeal in limine observing that
the appeal does not involve any substantial question
of law.
11) Felt aggrieved, defendant No.1 has filed this
appeal by way of special leave before this Court.
12) Heard Mr. Shyam Divan, learned senior
counsel for the appellant and Mr. Makarand D.
Adkar, learned counsel for the respondents.
13) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal and remand the
case to the High Court for deciding the second
appeal afresh on merits in accordance with law.
14) Learned Single Judge while dismissing the
appeal passed the following order:
“1) The appeal is filed mainly against the
findings recorded by the first appeal Court
that the respondent-plaintiff was entitled to
1/3rd share in the suit property being the
daughter of Noor Mohammed who is also the
father of the appellant. The fact that Noor
Mohammed, the father of the parties held the
suit properties at the time of his death is not
in dispute so also Noor Mohammed died
without leaving a testament is also an
admitted fact. Thus, the appellant and the
5Page 6
respondent being the brother and sister
would take the property, left behind by their
father as per provisions of the Mohammedan
Law. The appellant, thus would get two parts
of the suit property, whereas the third part
would go to the respondent no.1-original
plaintiff.
2) The findings recorded by the learned
Judge of the first appeal Court are cogent.
No interference in them is called for. There
is no substantial question of law, arising in
this appeal. The second appeal stands
dismissed. Consequently, Civil Application
Nos. 4980 of 2005 and 9547 of 2003 also
stand dismissed.”
15) As observed supra, we do not agree with the
reasoning and the conclusion arrived at by the High
Court in the impugned order. In our considered
view, the appeal did involve the substantial
questions of law and, therefore, the High Court
should have admitted the appeal by first framing
substantial questions of law arising in the case and
then after giving notice to the respondents for its
final hearing as provided under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”) decided the appeal on merits.
16) As a matter of fact, in our view, having regard
to the nature of controversy and the issues involved
regarding ownership based on interpretation of
documents (exhibits), the questions did constitute
substantial questions of law.
17) The questions as to whether the suit property
is self-acquired property of late Sk. Noor
Mohammad and, if so, whether respondent No.1
was entitled to inherit the same as his legal
representative in accordance with the shares defined
in the Mohammedan Law and secondly, whether the
suit property is self-acquired property of the
appellant (defendant No.1) on the strength of
documents filed by him and, if so, whether it has
resulted in excluding respondent No.1 to claim any
share in such property as an heir of Sk. Noor
Mohammad, was required to be decided by framing
substantial questions of law in the light of proved
documents filed by defendant No.1 because it was
his case that the suit property was his self-acquired
property. The High Court unfortunately did not
examine any document for deciding the ownership
issue in relation to the suit property.
18) When the Court is called upon to interpret the
documents and examine its effect, it involves
questions of law. It is, therefore, obligatory upon
the High Court to decide such questions on merits.
In this case, the High Court could do so after
framing substantial questions of law as required
under Section 100 of the Code. It was, however, not
done.
19) The High Court thus, in our view, committed
jurisdictional error when it dismissed the second
appeal in limine. We cannot countenance the
approach of the High Court.
20) In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside. The case is now remanded to the High Court
for deciding the appeal on merits in accordance with
law.
21) We, however, request the High Court to admit
the second appeal, frame appropriate substantial
questions of law as required under Section 100 of
the Code, keeping in view the pleadings, findings of
the two courts below and the documents (exhibits).
Needless to say, the questions to be framed should
be specific with reference to exhibits and the
findings of the two courts below.
22) Before parting, we consider it proper to
mention here that we have not expressed any
opinion on the merits of the controversy and
confined our inquiry only to examine whether the
second appeal involved any substantial question of
law within the meaning of Section 100 of the Code?
23) We have noticed that the dispute is between
the members of one family. It would, therefore, be
in the interest of family that efforts should be made
to settle the dispute amicably. Indeed, it was also
stated by learned counsel for the parties before us
by giving some offer to each other. We grant this
liberty to renew their respective offers before the
High Court and explore the possibility for amicable
settlement before finally hearing the appeal
preferably within six months.
24) Record of the case, if requisitioned, be sent
back to the High Court forthwith by the Registry.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
February 20, 2017
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