Law Web: Whether decree can be reversed on ground that appellate court has failed to frame points?

This Court in the case of Vatsalabai wd/o

Vishwanath Nakhate & Others Vs. Madhaorao Laxmanrao

Thakare & Another, 2005(1) Mh.L.J. 980 has held that failure

of the first Appellate Court to formulate the questions, as

required under Order XLI, Rule 31 of CPC, would in deed

constitute a substantial question of law. However, when the

appeal is heard on merits and the High Court is required to

examine the question of reversal of the decree, on any such

grounds, the Court has to examine as to whether, the failure of

the first Appellate Court to formulate the question, as required

under Order XLI, Rule 31 of CPC, has resulted into miscarriage

of justice. This Court has further found that in a situation of the

present nature, the provisions of Section 99 of CPC cannot be

lost sight of. Section 99 of CPC inter alia provides that no decree

shall be reversed or substantially varied, nor shall any case be

remanded in appeal on account of any error, not affecting the

merits of the case or the jurisdiction of the Court. Now the

question whether the failure to frame such points or proper

points, has resulted into any miscarriage of justice or has

affected the merits of the case, would depend upon facts and

circumstances of each case. In the present case, I do not find

that there is any miscarriage of justice, which has resulted,

affecting the merits of the case, within the meaning of Section 99

of CPC.

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 127 OF 2017

Shablo Govind Gaude Vs Kashinath Govind Gaude

Coram : C.V. BHADANG, J.

Date : 14 th JUNE 2018

The challenge in this appeal, is to the concurrent

findings of the Courts below, decreeing the suit of the

respondents/plaintiffs.

2. The respondents filed Regular Civil Suit No.

56/2009/A, before the learned Senior Civil Judge at Ponda,

against the appellants, for declaration and consequential reliefs.

The respondents sought declaration that the Deed of Gift dated

09.11.2004, the Will dated 25.11.2002 and the decree dated

03.11.2007, passed by the learned Senior Civil Judge, Ponda in

Regular Civil Suit No. 87/2005/A, is null and void and for a

consequential direction to the registration authority to cancel

the said documents namely, the Deed of Gift and the Will.

3. Respondent No. 1-Kashinath Gaude and the appellant

no. 1-Shablo Gaude, are the sons of Govind Gaude and his wife

Smt. Yamuna Gaude. Govind Gaude died on 27.04.2006, while

his wife, Yamuna Gaude died on 18.04.1995. Respondent no. 2 is

the wife of respondent no. 1. The appellant no. 2 is the son of

appellant no. 1, while the appellant no. 3 is the wife of the

appellant no. 2. The appellant no. 1 and the respondent no. 1

had a brother by name Vithal Gaude. Admittedly, Vithal Gaude

was not made a party to the suit filed by the respondents.

4. The material case made out in the plaint was that the

appellants, taking undue advantage of old age of Govind Gaude,

fraudulently got executed the two documents, namely, the Gift

Deed and the Will. Insofar as the decree is concerned, the same

was obtained on the basis of the Deed of Gift. Admittedly, in

Regular Civil Suit No. 87/2005/A (in which the decree is passed),

the respondents were not made parties. Admittedly, the said suit

was filed against some third parties.

5. Be that as it may, the respondents resisted the suit,

claiming that the Deed of Gift and the Will, have not been

voluntarily executed by Govind Gaude and the suit as framed and

filed, was not maintainable.

6. On the basis of the rival pleadings, the learned Trial

Court framed as many as eight issues, apart from an additional

issue pertaining to the Deed of Gift. The parties led oral and

documentary evidence. On behalf of the respondents, Kashinath

Gaude examined himself as (PW-1) along with one Tilu Borkar

(PW-2), Ramdas Gaude (PW-3) and Santosh Madkaikar (PW-4).

The appellant no. 2, Rajendra Gaude examined himself as DW-1.

7. The learned Trial Court on appreciation of the

evidence, decreed the suit by judgment and decree dated

28.07.2015. The appellants, feeling aggrieved, challenged the

same before the learned District Judge in Regular Civil Appeal

No. 116/2015. The learned District Judge framed the following

points for determination:

1. Whether late Govind Vithu Gaude could give

entire undivided property by executing a Will in

favour of defendant no. 2 ?

2. Whether late Govind Vithu Gaude could gift entire

undivided property by way of a Deed of Gift in

favour of defendant no. 1 ?

3. Whether the defendants no. 1 and 2 could enter

their names in survey records in respect of

property bearing survey no. 186/0 of village

Gaune, Bandora, Ponda, Goa on the basis of a

judgment and decree obtained in Regular Civil

Suit No.87/2005/A ?

4. Whether the impugned judgment and decree

passed by the learned Trial Judge is arbitrary and

perverse and is required to be quashed and set

aside ?

8. The learned District Judge answered all the points in

the negative and dismissed the appeal vide judgment and decree

dated 31.05.2016. Hence, this appeal.

9. I have heard Shri Nagvenker, the learned Counsel for

the appellants and Shri Bhobe, the learned Counsel for the

respondents. With the assistance of the learned Counsel for the

parties, I have gone through the impugned judgment of the

Courts below.

10. Shri Nagvenker, the learned Counsel for the

appellants has raised three contentions. Firstly, it is submitted

that Vithal Gaude, the third son of Govind Gaude, not being

made a party to the suit, the suit could not have been decreed. It

is submitted that the respondents had sought a declaratory

relief, in which, Vithal Gaude was one of the co-owners, as such,

he was a necessary party. Secondly, it is contended that the

Appellate Court has not framed proper points, which is, in

breach of Order XLI, Rule 31 of the Code of Civil Procedure

(CPC, for short). Lastly, it is submitted that the Courts below

could not have declared the Gift Deed, the Will and the decree

(passed in some other suit), as null and void. It is also submitted

that if, it was found that the Gift and the Will was in excess of

disposable quota, it could have been restricted to such

disposable quota of the testator/donor.

11. Shri Bhobe, the learned Counsel for the respondents

has supported the impugned order. It is submitted that the

ground about Vithal Gaude, being a necessary party was not

raised before the Trial Court and the judgment of the Appellate

Court also does not show that it was raised in appeal, during the

course of hearing. It is submitted that Vithal Gaude cannot be

said to be a necessary party, in as much as, he was not a party to

the Gift Deed, the Will or the decree in Regular Civil Suit No.

87/2005.

12. It is submitted by the learned Counsel for the

respondents that the Courts below have rightly decreed the suit

on appreciation of evidence and the concurrent findings of fact

so reached, cannot be interfered with in a second appeal. It is

submitted that the Appellate Court has framed the necessary

points and the appellants have not demonstrated any prejudice,

on account of failure to frame any particular point by the first

Appellate Court.

13. I have carefully considered the rival circumstances

and the submissions made and I do not find that the appeal

raises any substantial question of law.

14. At the outset, it is necessary to note that the ground

about non-joinder of Vithal Gaude, as party defendant in the suit,

was not raised before the Courts below. Even otherwise, the suit

was for declaration of the Deed of Gift, the Will and the decree

as null and void, which were entirely in the favour of the

appellants, to which, Vithal Gaude was not a party. Thus, in my

considered view, it cannot be accepted that Vithal Gaude could

be said to be a necessary party to the suit.

15. Even insofar as the points, which are framed by the

first Appellate Court, are concerned, the points as set out above,

would show that the necessary issues/points have been framed

by the Appellate Court.

16. This Court in the case of Vatsalabai wd/o