Holding

The Supreme Court held that the existence of a substantial question of law is a sine qua non for exercising jurisdiction under Section 100 CPC, and the High Court erred in overturning the factual findings without such a question, thereby setting aside its judgment.

Summary

The dispute concerned the title to a property claimed by Govindaraju, who purchased it from descendants of Muthuswamy Moopanar, and by Mariamman, who purchased it from descendants of Veeramuthu Moopanar. The trial court and the first appellate court dismissed Mariamman's suit for declaration of title, holding that neither party proved the title of their respective vendors. The Madras High Court reversed those findings, holding that the vendor Ganapathy Moopanar had inherited title under Sections 15(1)(b) and 15(2)(a) of the Hindu Succession Act and that the sale deed conveyed valid title. On special leave, the Supreme Court set aside the High Court judgment, ruling that the High Court lacked jurisdiction under Section 100 of the CPC because no substantial question of law was properly framed and the factual findings could not be disturbed without a finding of perversity. Consequently, the lower courts' decisions were restored.

Issues considered

Whether the High Court had jurisdiction to entertain the second appeal under Section 100 CPC in the absence of properly framed substantial questions of law.
Whether the vendor Ganapathy Moopanar possessed title to the suit property under Sections 15(1)(b) and 15(2)(a) of the Hindu Succession Act.
Whether the sale deed executed by the vendor conveyed a valid title to the purchaser.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Hindu Succession ActSection 100 CPCsecond appealsubstantial question of lawtitle to propertysale deedinheritancejurisdictionperverse finding

Judgment

A GOVINDARAJU
v.
MARIAMMAN

FEBRUARY 4, 2005

B [ASHOK BHAN AND A.K. MATHUR, JJ.]

Hindu Succession Act, 1955; Sections 15(/)(b) and 15(2)(b):

Property in dispute allegedly purchased by appellant and respondent
C from different persons-legal heirs-Suit for declaration of title and permanent
injunction filed by one of the vendees-Dismissed by Trial Court holding that
both the parties failed to prove the title of their respective vendors in the suit
property-Affirmed by first Appellate Court-Reversed by High Court holding
that the Vendor/respondent had conveyable title to the suit property since the
D property was inherited by him as the only legal heir of the deceased owner/
successor-On appeal, Held: Sale of the property effected in favour of
respondent-Vendee did not convey any title as the vendor not proved to be
the owner of the property-High Court erroneously reversed the findings of
fact recorded by Court below without concluding the same as perverse-
Hence set aside.
E
Code of Civil Procedure, 1908; Section I 00:

Second Appeal-Jurisdiction of High Court-Held: Existence of
substantial questions of/aw is the sine qua non/or the exercise ofjurisdiction
by High Court for entertaining second appeal.
F
The Suit property was owned by the father of M & V, two brothers.
Appellant claims to be the purchaser of the suit property from descendants
of M and the respondent claims to be the purchaser of the same property
from descendants of V, brother of M. Respondent filed a suit for
G declaration of title and permanent injunction restraining the appellant
from disturbing his possession. rt was averred in the plaint that the suit
property belonged to one V who sold it to his two daughters for Rs. 300
as consideration amount. Since one of the daughters died issueless, her
share in the property came to the share of her sister. Later, she also died
issueless. One G claiming himself to be her step son succeeded to her estate
H 1100
GOVINDARAJU v. MARIAMMAN 1101
j
by virtue of Section lS(l)(b) of the Hindu Succession Act. He sold the A
property to respondent-vendee, one of the claimants. Since appellant-
another claimant of the property was interfering with the peaceful
enjoyment of the property, the respondent filed a declaratory suit. Trial
Court dismissed the suit holding that the sale deed executed in favour of
the respondent was not a valid one and also the sale made in favour of
the appellant was not proved. First Appellate Court upheld the order of B
the Trial Court. But High Court reversed the findings of the Courts below.
Hence the present appeal.

It was contended for the appellant that the questions of law
formulated by the High Court at the time of admission of the appeal did C
not raise earlier and the High Court failed to determine any one of them;
and that the High Court erroneously assumed that once the questions of
law have been framed, it gets the jurisdiction to decide the appeal .
... Allowing the appeal, the Court
D
HELD: 1.1. The existence of substantial questions of law is the sine
qua non for the exercise of jurisdiction under Section 100 C.P.C. As per
settled law, the scope of exercise of the jurisdiction by the High Court in
Second Appeal under Section 100 CPC is limited to the substantial
questions of law framed at the time of admission of the appeal or additional
substantial questions of law framed at a later date after recording reasons J?
for the same. To be a 'substantial' question of law, it must be debatable,
not previously settled by law of the land or a binding precedent and answer
to the same will have a material bearing as to the rights of the parties
before the Court. To be a question of law 'involving in the case' there must
be first a foundation for it laid in the pleadings and the question should F
emerge from the sustainable findings of fact arrived at by the Court of
facts and it must be necessary to decide that question of law for a just
and proper decision between the parties. [1107-F; 1109-E-F-G)

Santosh Hazari v. Purushollam Tiwari (Deceased) by Lrs., [2001) 3
SCC 179; Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors., G
[1997) 5 SCC 438; Panchugopal Barua v. Umesh Chandra Goswami, [1997)
4 SCC 413; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [1999) 3
SCC 722 and Thiagarajan and Ors. v. Sri Venugopalaswamy B. Koil and
Ors., (20041 5 SCC 762, relied on.

1.2. In the instant case, the questions of law framed at the time of H
1102 SUPREME COURT REPORTS (2005] I S.C.R.
,.
A admission of the appeal were not questions of substance arising from the
findings recorded by the Courts of fact. The Court of fact recorded the
finding that the title in the suit property did not pass to V, owner/legal
heir of the property and the sale deed executed by him earlier in favour
of his two daughters was a nominal and a sham transaction; that there
was a divorce between his second daughter and her husband and the
B respondent-vendee had failed to prove that G was successor of the
deceased. The Court of fact held that since G was not proved to be her
legal heir, he could not succeed to her estate in the property as legal heir
under Section 15(1)(b) of the Hindu Succession Act and that in the absence
of any direct heir, the property of the deceased reverted back to the other
C heirs of her father. Thus the sale effected by G in favour of the respondent
did not convey any title as he was not proved to be the owner of the
property. (1109-H; 1110-A-B(

2. On re-appreciating the evidence, Single Judge of the High Court
set aside the findings on facts. However, the questions of law which were
D framed at the time of admission of the appeal were not decided by the
High Court. Even if the High Court was of the view that the findings of
fact recorded by the Courts below were wrong, th1~se,findings could not
have been disturbed without coming to the conclusion that the findings
so recorded were perverse. (1111-D]
E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2292 of 1999.

From the Judgment and Order dated 26. I 1.97 of the Madras High
Court is S.A.No. 595 of 1984.

p A.T.M. Sampath for the Appellant.

K.K. Mani and K.B. Sandeep for the Responde:nt.

The Judgment of the Court was delivered by

BHAN, J. This appeal by special leave is preferred by the original
G
defendant - appellant herein, against the judgment and decree of the High
Court of Madras granting declaration and permanent injunction to the original
plaintiff - respondent herein, with respect to the suit property setting aside the
judgment and decree of the Trial Court as well as of the First Appellate Court
wherein aforesaid relief was denied to the respondent.
H
GOVINDARA.TU v. MARIAMMAN [BHAN, .I.] 1103
Facts : A
Appellant claims to be the purchaser of suit property from descendants
of Muthuswamy Moopanar; brother of Veeramuthu Moopanar and the
respondent claims to be the purchaser of the same property from descendants
of Veeramuthu Moopanar.
B
Respondent filed a suit for declaration of title and pennanent injunction
restraining the appellant from disturbing his possession and causing :my
l inconvenience in the peaceful enjoyment of the suit property. In the plaint it
was averred that the suit property belonged to one Veeramuthu Moopanar.
He had two daughters viz. Sivamalai Ammal and Thayarammal. Veeramuthu
Moopanar sold his entire property to his two daughters through a sale deed C
dated 1.7.1940 for Rs. 300 Veeramuthu Moopanar died and soon after his
widowed daughter Sivamalai Ammal also died issueless. Property ofSivamalai
Ammal came to the share ofThayarammal. Thayarammal was married to one
Sengamalai Moopanar as his second wife. Sengamalai Moopanar died in the
year I 973 and in 1976 Thayarammal also died issueless. Ganapathy Moopanar, D
son of the first wife of Sengamalai Moopanar, succeeded to the estate of
. Thayarammal by virtue of Section 15(1 )(b) of the Hindu Succession Act,
1955 (for short 'the Act') being heir of her husband. Ganapathy Moopanar
sold the property to the respondent temple on 25.5.1980. That appellant was
obstructing and interfering in the peaceful enjoyment of the property by the
respondent. It was prayed that the respondent be declared to be the owner E
being the vendee from the lawful owner and the appellant be injuncted from
interfering with the possession and peaceful enjoyment of the suit property
by the respondent.

In the written statement filed by the appellant it was contended that the F
entire property belonged to the father of Veeramuthu Moopanar and
Muthuswamy Moopanar and after the death of their father, partition took
place between the brothers in the year 1927 and the suit property fell to the
share of Muthuswamy Moopanar. Veeramuthu Moopanar managed the
property and took care of small children of Muthuswamy Moopanar. To
prevent the property from falling into the hands of the creditors of his deceased G
brother Muthuswamy Moopanar, Veeramuthu Moopanar executed a sham
and nominal sale deed dated 1.7.1940 in favour of his two daughters. That
the suit property was always in possession and enjoyment of the children of
Muthuswarny · Moopanar and the appellant purchased the property from
Sornathammal and Nallathambi, daughter and grandson respectively of H
1104 SUPREME COURT REPORTS (2005) I S.C.R.

A Muthuswamy Moopanar on 1.4.1980. That marriage between Thayarammal
and Sengamalai Moopanar was dissolved under custom by Village Panchayat
prior to 1950. That Ganapathy Moopanar was not the son of Sengamalai
Moopanar from his first wife and in turn was not the heir of Sengamalai
Moopanar. That the suit was not maintainable for non-joinder of necessary
parties as well. According to the appellant, he was the owner in possession
B of the suit property. That respondent was not entitled to the declaration and
injunction prayed for. The suit being frivolous deserves to be dismissed with
costs.

Trial Court dismissed the suit of the respondent with costs. It was held
C that both the parties had failed to adduce satisfactory evidence to prove the
title of their respective vendors to the suit property. That the sale deed executed
in favour of the respondent was not valid and the sale made in favour of the
appellant was also not proved. That respondent failed to prove that Ganapathy
Moopanar was the son of Sengamalai Moopanar from his first wife. That
Ganapathy Moopanar was neither in possession of the suit property nor had
D any title over the same. That no divorce had taken place between Thayarammal
and Sengamalai Moopanar as had been pleaded by the appellant. That sale
deed dated 1.7 .1940 executed by Veeramuthu Moopanar in favour of his
daughters was valid. That the suit was barred for non-joinder of necessary
parties.
E Being aggrieved, respondent preferred first appeal. Appellate Court
upheld the judgment and decree of the Trial Court and dismissed the appeal
holding that the respondent was not entitled to the declaration of title and
permanent injunction as prayed for. It was held that the title in the suit
property did not pass to Veeramuthu Moopanar and the sale deed executed
p by him in favour of his daughters on 1.7.1940 was sham and nominal. That
the marriage between Thayarammal and Sengamalai Moopanar was dissolved
under custom and the respondent had also failed to prove that Ganapathy
Moopanar was the son of Sengamalai Moopanar. Since Ganapathy Moopanar
was not the son of Sengamalai Moopanar, he could not inherit the estate of
Thayarammal as the heir of the husband of Thayarammal under Section
G 15(1 )(b) of the Act. In view of the findings that Thayarammal succeeded to
the estate of her father by way of inheritance being the daughter and not as
a vendee by way of sale from her father, by virtue of Section I 5(2)(a) of the
Act, in the absence of any direct heir, the property of Thayarammal devolved
upon the heirs of her father i.e. the family members of the brother of her
H father. The family members of Muthuswamy Moopanar had the title and
GOVINDARAJU v. MARIAMMAN [BHAN. J.] 1105

right over the suit property and the sale deeds executed by the daughter and A
grandson of Muthuswamy Moopanar in favour of the appellant were valid
and those executed by Ganapathy Moopanar in favour of the respondent did
not convey any title as their vendor did not have the title to the property.

Respondent, being aggrieved, filed Second Appeal No. 595 of 1984
against the judgment and decree of the First App-~ll<>it Court in the High B
Court. The High Court while admitting the appeal formulated the following
substantial questions of law said to be arising in the appeal:

"( 1) Whether the lower appellate court having upheld the sale deed
executed by Thayarammal in favour of a third party in relation
to the properties said to have been obtained by her through her C
father Veeramuthu Moopanar could held inconsistently that
Thayarammal did not get any property validly from Veeramuthu
Moopanar?
(2) If Thayarammal can be taken to ha'(e acquired title to the suit
property whether the plaintiff could be non-suited on the ground D
that Ganapathy, who sold the property as step son of
Thayarammal should be proved by plaintiff as the legitimate
son of Thayarammal's husband by another wife, when there is
no specific allegations made in the written statement that
Ganapathy is the illegitimate son of Sengamalai, husband of E
Thayarammal?"

High Court on reappraising the entire evidence reversed the findings of
both the courts below and decreed the suit of the respondent granting
declaration and permanent injunction as prayed for in the suit. It was held
that sale deed dated l.7.1940 executed by Veeramuthu Moopanar in favour p
-f of his daughters was not sham and nominal. That no divorce took place
between Thayarammal and Sengamalai Moopanar and Ganapathy Moopanar
was the son of Sengamalai Moopanar. That by virtue of Section 15( I)(b) of
the Act Ganapathy Moopanar succeeded to the estate of Thayarammal and
completely excluded the branch of Muthuswamy Moopanar from inheritance
to the estate of Thayarammal. That after the death of Thayarammal, her step- G
son Ganapathy Moopanar inherited the property as heir of her husband and,
therefore, had a conveyable title to the suit property. Sale made by him in
favour of the respondent was upheld and the suit decreed.

Counsel for the appellant strenuously contended that the High Court H
1106 SUPREME COURT REPORTS (2005) I S.C.R.

A has committed jurisdictional error in setting aside the findings of fact recorded
by the courts below on re-appreciation of evidence in the Second Appeal' in
exercise of its jurisdiction under Section I00 of the Code of Civil Procedure
(hereinafter referred to as 'the Code'). According to him, ·the questions of
law formulated by the High Court at the time of admission of the appeal did
B not arise either from the pleadings of the parties, evidence led or the findings
recorded by the courts below. That the High Court after referring to the
questions of law which had been formulated at the time of admission failed
to determine any one of them. That the High Court erroneously assumed that
once the questions of law have been framed then it gets the jurisdiction to
decide the appeal on re-appreciation of evidence without detennining the
C questions of law.

Per contra, counsel for the respondent did not dispute the proposition
of law that the jurisdiction of the High Court under Section I 00 of the Code
is limited to the substantial questions of law framed at the time of admission
of the appeal or further substantial questions which the High Court can frame
D during the course of hearing • of the appeal after recording reasons for the
same. He could not seriously dispute the fact that the questions of law
fonnulated at the time of admission of the appeal are not substantial questions
of law involved in the case. He submitted that the case be remitted back to
the High Court for a fresh decision leaving it open to the High Court to frame
E additional substantial questions of law, if any, arising in the appeal in order
to do substantial justice between the parties.

A perusal of Section I 00 of the Code makes it clear that the High Court
cannot proceed to hear a Second Appeal without formulating the substantial
questions of law involved in the appeal. It reads :
F "100. Second Appeal - (I) Save as otherwise expressly provided in
the body of this Code or by any other law for the time being in force,
an appeal shall lie to the High Court from every decree passed in
appeal by any court subordinate to the High Court, if the High Court
is satisfied that the case involves a substantial question of law.
G (2) An appeal may lie under this section from an appellate decree
passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal.

H (4) Where the High Court is satisfied that a substantial question of
GOVINDARAJU v. MARIAMMAN [BHAN ..I.] 1107

law is involved in any case, it shall formulate that question. A
(5) The appeal shall be heard on the question so formulated and the
respondent shall, at the hearing of the appeal, be allowed to argue
that the case does not involve such question :

Provided that nothing in this sub-section slfall be deemed to take B
away or abridge the power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such question."

Section 100 provides that the second appeal would lie to the High
Court from a decree passed in appeal by any court subordinate to the High C
Court if the High Court is satisfied that the case "involves a substantial
question of law''. It further provides that the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal and the
High Court on being satisfied that the substantial question of law is involved
in a case formulate the said question. Sub-section (5) provides that the "appeal
shall be heard on the question so formulated''. It reserves the liberty with the D
respondent against whom the appeal was admitted ex-parte and the questions
of law had been framed in his absence to argue that the case did not involve
the questions of law framed. Proviso to sub-section (5) states that the questions
of law framed at the time of admission would not take away or abridge the
power of the court to frame any other substantial question of law which was E
not formulated earlier, if the court is satisfied that the case involved such
additional questions after recording reasons for doing so. It is abundantly
clear from the analysis of Section 100 that ifthe appeal is entertained without
framing the substantial questions of law, then it would be illegal and would
amount to failure or abdication of the duty cast on the court. The existence
of substantial questions of law is the sine qua non for the exercise of F
jurisdiction under Section 100 of the Code. {Refer to Kshitish Chandra Purkait
V. Santosh Kumar Purkait and Ors., [1997] 5 SCC 438, Panchugopal Barua
v. Umesh Chandra Goswami, [1997] 4 SCC 413 and Kondiba Dagadu Kadam
v. Savitribai Sopan Gujar, [1999] 3 SCC 722}

A three Judge Bench of this Court in Santosh Nazari v. Purushottam G
Tiwari (Deceased) By LRs., [200 l] 3 SCC 179 after tracing the history of
Section I 00, the purpose which necessitated and persuaded the Law
Commission of India to recommend for amendment of Section 100, concluded
that scope of hearing of Second Appeal by the High Court is circumscribed
by the questions formulated by the High Court at the time of admission of H
1108 SUPREME COURT REPORTS [2905) I S.C.R.

A the appeal and the High Court has to hear the appeal on substantial questions
of law involved in the case only. That the High Court would be at liberty to
hear the appeal on any other substantial question of law, not earlier formulated
by it, if the court is satisfied of two conditions i.e. (i) the High Court feels
satisfied that the case involves such question, and (ii) the High Court records
B reasons for its such satisfaction." It was observed in para 10 as under :
"At the very outset we may point out that the memo of second
appeal filed by the plaintiff-appellant before the High Court suffered
from a serious infirmity. Section 100 of the Code, as amended in •
1976, restricts the jurisdiction of the High Court to hear a second
appeal only on "substantial question of law involved in the case". An
c obligation is cast on the appellant to precisely state in the memorandum
of appeal the substantial question of law involved in the appeal and
which the appellant proposes to urge before the High Court. The
High Court must be satisfied that a substantial question of law is
involved in the case and such question has then to be formulated by
D the High Court. Such questions or question may be the one proposed
by the appellant or may be any other question which though not
proposed by the appellant yet in the opinion of the High Court arises
as involved in the case and is substantial in nature. At the hearing of
the appeal, the scope of hearing is circumscribed by the question so
formulated by the High Court. The respondent is at liberty to show
E that the question formulated by the High Court was not involved in
the case. In spite of a substantial question of law determining the
scope of hearing of second appeal having been formulated by the
High Court, its power to hear the appeal on any other substantial
question of law, not earlier formulated by it, is not taken away subject
F to the twin conditions being satisfied : (i) the High Court feels satisfied
that the case involves such question, and (ii) the High Court records
reasons for its such satisfaction."

{Emphasis supplied}

G As to which would constitute a substantial question of law, it was
observed :

"A point of law which admits of no two opinions may be a proposition
of law but cannot be a substantial question of law. To be "substantial"
a question of law must be debatable, not previously settled by law of
H the land or a binding precedent, and must have a material bearing on
GOVINDARAJU v. MARIAMMAN [BHAN . .1.) 1109

" the decision of the case, if answered either way, insofar as the rights A
of the parties before it are concerned. To be a question of law
lo
"involving in the case" there must be first a foundation for it laid in
the pleadings and the question should emerge from the sustainable
findings offact arrived at by court offacts and it must be necessary
to decide that question of law for a just and proper decision of the
1
case. An entirely new point raised for the first time before the High
B
Court is not a question involved in the case unless it goes to the root
of the matter. It will, therefore, depend on the facts and circumstance
of each case whether a question of law is a substantial one and involved
in the case, or not; the paramount overall consideration being the
need for striking a judicious balance between the indispensable c
obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis."

{Emphasis supplied}

This judgment has been followed in a number of decisions including
D
the latest on the point Thiagarajan and Ors. v. Sri Venugopalaswamay B.
l
Kail and Ors., [2004] 5 SCC 762.

As per settled law, the scope of exercise of the jurisdiction by the High
Court in Second Appeal under Section I 00 is limited to the substantial
questions of law framed at the time of admission of the appeal or additional E
substantial questions of law framed at a later date after recording reasons for
the same. It was observed in Santosh Hazari 's case (supra) that a point of law
which admits of no two opinions may be a proposition of law but cannot be
a substantial question of law. To be a 'substantial' question of law must be
debatable, not previously settled by law of the land or a binding precedent
and answer to the same will have a material bearing as to the rights of the F
~
parties before the Court. As to what would be the question of law "involving
!' in the case", it was observed that to be a question of law 'involving in the
case' there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact arrived at by the
court of facts and it must be necessary to decide that question of law for a G
just and proper decision between the parties .

~ ... After perusal of the findings recorded by the courts below and the High
d Court, we are of the opinion that the questions of law framed at the time of
admission of the appeal were not questions of substance arising from the
findings recorded by the courts of fact. The court of fact recorded the finding H
/

1110 SUPREME COURT REPORTS [2005) I S.C:R.

A that the title in the suit property did not pass to Veeramuthu Moopanar and
the sale deed dated 1.7.1940 executed by him in favour of his two daughters
was a nominal and a sham transaction. The court of fact had also come to the
conclusion that there was a divorce between Thayarammal and Sengamalai
Moopanar under custom and the respondent herein had failed to prove that
Ganapathy Moopanar was the son of Sengamalai Moopanar from his first
B wife. After recording this finding of fact, the court of fact held that since
Ganapathy Moopanar was not proved to be the son of Sengamalai Moopanar
and that a divorce had taken place between Thayarammal and Sengamalai
Moopanar, Ganapathy Moopanar could not succeed to the estate of
Thayarammal being the heir of her husband under Section 15( I )(b) of the
C Act. That in the absence of any direct heir, the property of Thayarammal
reverted back to the heirs of her father i.e. the family members of the brother
of her father. The sale effected by Ganapathy Moopanar in favour of the
respondent did not convey any title as Ganapathy Moopanar was not proved
to be the owner of the property.

D The High Court on re-appreciation of evidence recorded a finding to
the contrary and held that the marriage between Thayarammal and Sengamalai
Moopanar had not been dissolved. It further held that Ganapathy Moopanar
was the son of Sengamalai Moopanar from his previous wife. That the sale
executed by Veeramuthu Moopanar dated 1.7.1940 in favour of his two
E daughters was not a nominal and sham transaction. That it conveyed a valid
title of the suit property to his two daughters. As the daughters had not
inherited the property but purchased the same from their father, they became
the absolute owners of the same. Thayarammal had inherited the share of her
sister after her death. As Thayarammal had died issueless and had a step-son
Ganapathy Moopanar from her husband, Ganapathy Moopanar inherited the
F suit property being the heir of her husband under Section 15( I)(b) of the Act
and succeeded to the estate of Thayarammal. That Ganapathy Moopanar had
a conveyable title in the suit property and the sale made by him in favour of
the respondent was valid and decreed the suit. This was done on re-appreciation
of evidence present on record. Questions of law which had been framed at
the time of admission and were referred and reproduced in the judgment
G were not adverted to while deciding the appeal. No finding was recorded on
those questions. After reproducing the questions of law, the learned Single
Judge did not advert to either of them or record findings on them. The
learned Single Judge proceeded to decide the appeal thereafter as if after
framing the questions of law the High Court gets the jurisdiction to re-
H appreciate the evidence and come to a conclusion other than the one recorded
GOVINDARAJU v. MARIAMMAN [BHAN, J.] 1111
-i
by the courts of fact. As observed by this Court in Santosh Ha:::ari 's case A
. (supra) for the question of law to be involved in the case, first a foundation
for it has to be laid in the pleadings and the question should emerge from the
sustainable findings of facts arrived at by the court of fact and it must be
necessary to decide that question of law for a just and proper decision of the
case. In the present case, the learned Single Judge proceeded to re-appreciate B
the evidence and on re-appreciating the same, set aside the findings referred
to above on facts. On reversal of the findings referred to above on facts, the
High Court came to the conclusion that Ganapathy Moopanar would inherit
the property under Section 15( I)(b) being the heir of the husband of
Thayarammal and not under Section I 5(2)(a) under which property was to
revert back to the heirs of her fatlier. The questions of law which were C
framed at the time of admission of the appeal were not decided by the High
Court.

Even if the High Court was of the view that the findings of fact recorded
by the courts below were wrong, in our opinion, these findings of fact could
not be disturbed without coming to the conclusion that the findings recorded D
were perverse i.e. based on misreading of evidence or based on no evidence.
The High Court did not come to such a conclusion. The learned Singh Judge
also did not come to the conclusion that the appeal involved other substantial
questions of law or formulate the same.

Counsel for the respondent submitted that the case be remitted back to E
the High Court for a fresh decision. We are not inclined to do so as, in our
opinion, a substantial question of law does not arise in the appeal. Counsel
for the respon.dent could not formulate a question of law which could be said
to be arising in the second appeal.
F
For the reasons stated above, this appeal is accepted, the judgment and
decree passed by the High Court is set aside and that of the courts below is
restored. No order as to costs.

S.K.S Appeal allowed.