SK. BHIKAN S/O SK NOOR MOHD.versusMEHAMOODABEE W/O SK. AFZAL & ORS.

                         [2017] I S.C.R. 841


                 SK. BHIKAN S/O SK .. NOOR MOHD.                       A
                                  v.
              MEHAMOODABEE W/O SK. AFZAL & 'ORS.
                    (Civil Appeal No. 3048 of2017)
                        FEBRUARY 20, 2017                              B

  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.)
        Code of Civil Procedure, 1908 - s. 100 - Second appeal -
Substantial question of law - On facts, dismissal of second appeal
in limine observing that the appeal does not involve any substantial
question of law - Co~rectness of - Held: When the Court is called
                                                                       c
upon to interpret the documents and examine its effect, it involves
questions of law - Thus, it is, obligatory upon the High Court to
decide such questions on merits - On facts, having regard to the
nature of controversy and issues involved regarding ownership
based on interpretation of documents (exhibits), the questions did     D
constitute substantial questions of law - High Court did not examine
any documentfor deciding•the ownership issue - liigh Court could
do so after framing substantial questions of law - However, it was
not done - High Court committed jurisdictional error - Matter
remanded to the High Court for deciding the second appeal afresh
                                                                       E
on n1erits.
        Allowing the appeal, the Court
       HELD: 1.1 As a matter of fact, having regard to the nature
of controversy and the issues involved regarding ownershipoased
on interpretation of documents (exhibits), the questions did
constitute substantial questions of law. The High Court                F
unfortunately did not examine any document for deciding the
ownership issue in relation to the suit property. [Paras 16-17)
[845-B, D-E)
        1.2 When the Court is called upon to interpret the
documents and examine its effect, it involves questions of law. It     G
is, therefore, obligatory upon the High Court to decide such
questions on merits. In the instant case, the High Codrt could do
so aft~r framing substantial questions of law as required under
Section 10\) of the Code. It was; however, not done. The High
Court committed jurisdictional error when it dismissed the second
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                             841
842            SUPREME COURT REPORTS                          [2017] l S.C.R.


A     appeal in limine. The approach of the High Court cannot be
      countenanced. [Paras 18-19) [845-E-F]
               1.3 The reasoning and the conclusion arrived at by the
      High Court in the impugned order cannot be concurred with.
      The appeal did involve the substantial qnestiol)s of law and,
B     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 CPC decided the appeal on merits.
      [Para 15] [844-G-H; 845-A]
C             1.4 The impugned order is set aside. The case is remanded
      to the High Court for deciding the appeal on merits in accordance
      with la11'. [Para 20] [845-G]
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3048
      of2017.
D            From the Judgment and Order dated 09.02.2010 of the High
      Court of Judicature at Bombay Bench at Aurangabad in Second Appeal
      No. 875 of 2009.
             Shyam Divan, Sr. Adv., Atul Babasaheb Dakh, Advs. for the
      Appellant.
 E
             Makarand D. Adkar, Pravin Satale, Vijay Kumar, Raj iv Shankar
      Dvivedi, Nar Hari Singh, Advs. for the Respondents.
              The Judgment of the Court was delivered by
              ABHAY MANOHAR SAPRE, J. I. Leave granted.
 F            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
 G    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
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  SK. BHIKAN S/O SK. NOOR MOHD. v. MEHAMOODABEE                                843
   W/0 SK. AFZAL & ORS. [ABHAY MANOHAR SAPRE, J.)

and sister) of one Muslim family. It relates to landed and house properties    A
situated at village Satara, DistrictAurangabad (Maharashtra) as detailed
in Para I of the plaint (hereinafter referred to as the "suit property").
         6. Respondent No. I 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 llnd Jt. Civil Judge (J.D.) at Aurangabad           B
being Civil Suit No. 120of1994 and prayed therein the reliefofpartition
by meets and bounds of the suit property and, in consequence, also
claimed her separate possession in the sllit 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,              c
respondent No. I, 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. I alleged that since her father died
intestate leaving behind respondent No. l 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       D
herein).
         8. The appellant denied the case set up by respondent No. I 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           E
father had any right, title or interest in the said property and, in
consequence thereof, nor respondent No. I could inherit any right, title
or inter~st in the suit property through her father as his legal heir. The
appeLtant also set up a title by alleging his adverse possession over the
suit property to the exclusion of all including respondent No. I.               F
        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. I. Respondent No. I (plaintiff),
felt aggrieved, filed first appeal being R.C.A. No. 59 of2000 before the
District Judge, Aurangabad. By a judgment/decree dated 30.11.2001,              G
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. I.
        I 0. Felt aggrieved, appellant (defendant No. I) filed second appeal
being S.A. No.875 of2009 before the High Court. By impugned order,
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844            SUPREME COURT REPORTS                          [2017) I S.C.R.


A     the High Court dismissed the second appeal in limine observing that the
      appeal does not involve any substantial question oflaw.
              11. Felt aggrieved, defendant No. I has filed this appeal by way
      of special leave before this Court.
             12. Heard Mr. Shyam Divan, learned senior counsel for the
B     appellant and Mr. Makarand 0. 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
c     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
D
              by the first appeal Court that the respondent-plaintiff was
              entitled to 113rd 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
E             leaving a testament is also an admitted fact. Thus, the
              appellant and the 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 prqperty, whereas the
              third part would go to the respondent no.1-original plaintiff.
F
              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
G
              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
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  SK. BHIKAN S/O SK. NOOR MOHD. v: M£HAMOODABEE                               845
   W/O SK. AFZAL & ORS. [ABHAY MANOHAR SAPRE, J.]

first framing substantial questions of law arising in the case and then       A
after giving notice to the respondents for its final hearing as provided
under Section I 00 of the Code of Civil Procedure, 1908 (hereinafter
referred to as "the Code'') decided the ~ppeal 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           B
interpretation of documents (exhibits), the questions did constitute
substantial questions oflaw.
         17. The questions as to whether the suit property is self-acquired
property of late Sk. Noor Mohammad and, if so, whether respondent
No. I was entitled to inherit the same as his legal representative in         c
accordance with the shares defined in the Mohammedan Law and
secondly, whether the suit property is self-acquired property of the
appellant (defendant No.I) on the strength of documents filed by him
and, if so, whether it has resulted in excluding respondent No. I 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          D
light of proved documents filed by defendant No.I 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          E
and examine its effect, it involves questions of law. It is, therefore,
obligatory upon the High Court to decide such questions on merits. Jn
this case, the High Court could do so after framing substantial questions
oflaw as required under Section 100 of the Code. It was, however, not
done.                                                                          F
       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          G
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 oflaw as required under
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846                SUPREME COURT REPORTS                        (2017) 1 S.C.R.


A     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
B     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 oflaw within the meaning of Section 100 of the
      Code?
               23. We have noticed that the dispute is between the members of
c     om! family. It would, therefore, be in the i1,iterest 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 graht 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.
D
              24. Record of the case, ifrequisitioned, be sent back to the High
      Court forthwith by the Registry.


      Nidhi Jain                                                    Appeal allowed.