Holding

The High Court exceeded its jurisdiction under Section 100 CPC by interfering with findings of fact where no substantial question of law existed.

Summary

The appellant purchased a property by a registered sale deed in 1950 and the respondent entered into a rent agreement with her in 1951. In 1974 the respondent sued for conveyance of the property based on an alleged handwritten 'yadast' by the appellant's mother, which was unstamped, unregistered and later found to be forged. The trial court ruled for the respondent, but the Additional District Judge reversed, holding the sale deed conveyed title to the appellant, the yadast was forged, and the suit was barred by the 20‑year limitation. The High Court, invoking Section 100 of the CPC, interfered with the lower court's findings of fact on the ground that the scribe's evidence was not considered, and allowed the appeal. The Supreme Court held that Section 100 permits interference only when a substantial question of law arises, which was absent; the High Court had overstepped its jurisdiction and the appeal was allowed, restoring the lower appellate decision.

Issues considered

Whether the High Court can interfere with findings of fact under Section 100 CPC in the absence of a substantial question of law.
Whether specific performance can be decreed against a party who is not the executant of the contract and lacks the right to dispose of the property.
Whether the suit for specific performance is barred by the limitation period.
Whether the alleged 'yadast' is a valid instrument for enforcing conveyance.

Legislation cited

Code of Civil Procedure, 1908s. 100
Specific Relief Act, 1963s. 5

Subjects

Section 100 CPCSpecific performancesubstantial question of lawappeal jurisdictionforgerylimitation periodcontract enforceabilityevidence appraisal

Judgment

SMT. ANNAPOORANIAMMAL A
.l v.
G. THANGAPALAM

MAY 1, 1989

[G.L. OZA, AND K. JAGANNATHA SHETTY, JJ.) B

Code of Civil Procedure 1908: Section JOO-High Court-
Jiurisdiction to interfere only when substantial question of law involved.

- Specific Relief Act, 1963: Section 5-Specific performance-Can
be decreed only against executant of contract having right to dispose of C
property.

The appellant purchased the suit property by a registered sale
deed dated 27th December, 1950 for a consideration of Rs. 7,000. On 1st
January, 1951, the respondent executed a rent agreement in favour of
the appellant acknowledging her as landlady at Rs.SO per month. D

The mother of the appellant died in 1963. In 1974, the respondent
filed a suit against the appellant for conveyance of the suit property in
his favour on the basis of a 'yadast', alleged to have been written by the
mother of the appellant on 24th December, 1950 in his favour providing
for conveyance of the property In his favour after .paying the sale price .E
of Rs.7,000 and Rs.1,000 for registration expenses. This 'yadast' was
however neither stamped, registered, nor attested. It was marked as Ex.
A-11. The Trial Court decreed the respondent's suit relying on the
'yadast'.

On appeal the Additional District Judge after detailed examina- F
lion of all the facts involved in the case and the evidence of the parties,
came to the finding that the appellant acquired title to the property on
the basis of the sale deed which was a registered document in her favour
and that the suit property was leased out to the respondent under a rent
agreement, and that as the mother of the appellant was not a party to
the sale deed she had no right to agree'to convey the property or to ask G
her daughter to convey the same in favour of the respondent. He also
came to the conclusion that the Yadast was not a genuine document but
a forged one which was just got up for the purposes of the suit. He
accordingly allowed the appeal,' and held that the suit for specific
performance was further barred as it was filed more than 20 years after
the alleged 'Yadast'. H
833
834 SUPREME COURT REPORTS [1989] 2 S.C.R.

The High Court in Second Appeal, however interfered with the _;._
A
findings of fact arrived at by the lower Appellate Court solely on thj>
basis that the evidence of the scribe of the 'Yadast' was not discussed by
the lower appellate Court, and accordingly allowed the Second Appeal.

In the Special Leave Petition to this Court, it was contended on
B behalf of the appellant that the suit for specific performance of the
contract could only b~ decreed against the executant of the contract
provided the executant had a right to dispose of the property about4
which the suit was filed, and that there was no question of law on the

c
basis of which the High Court exercised jurisdiction under Section 100
C.P.C. and interfered with the findings of fact.

Allowing the appeal, this Court
-
HELD: t. Section 100 C.P.C. clearly ;ndic&tes that the High
Court had the jurisdiction to interfere only when a substantial question
of law is involved and even then it is expected that such a question shall
D be so framed although the court is not bound by that question as the
proviso indicates. There may be some other substantial questions of law
which may need decision and which can be so decided. [838.G-H]

In the instant case, the Single Judge of the High Court has chosen
to interfere with the findings of fact solely on the basis of one ground,
E that the evidence of the scribe of the 'Yadast' PW 2 was not discussed
by the lower appellate court, and its failure has affected the validity of
the finding rendered by it. This was no substantial question of law,
much less a question of law on which the High Court could interfere
with the findings of fact. At best the questions on which the High Court
chose to interfere could be said to be questions of appreciation of
F evidence. [837H; 839F] x
2. The suit for specific performance of the contract could only •
be decreed against the executant of the contract provided the execu-
tant had a right to dispose of the property about which the suit is
filed. [836H; 837 A]
G
In the instant case, admittedly the mother of the appellant who,
was alleged to have executed the 'Yadast' was not the owner of the
property. Both the parties to the 'Yadast' were strangers to the sale
deed, and the sale deed does not refer to any one of them nor there is
anything in the sale deed to indicate that it was not an out and out
H sale. [837D]
SMT. ANNAPOORANI v. G. THANGAPALAM !OZA, J.) 835
-~' CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2635
of 1989. A

From the judgment and order dated 3.11.82 of the Madras High
Court in Second Appeal No. 2136of1979.

.-./, J. Ramamurti, R. Vagai and K.K. Mani for the appellant. B
\
~ S~ Padmanabhan, Mrs. Anjani and K. Ramkumar, for the res-

- pondent.

The judgment of the Court was delivered by
c
OZA, J, Leave granted. Heard learned counsel for the parties.
~
Facts necessary for this appeal are, that the petitioner appel-
!ant-original defendant purchased the suit property by registered sale
deed ·dated 27.12.1950 executed by Asirvada Nadar, Ponnammal and
Devadasan in favour of the present petitioner appellant for a consi· D
deration of Rs.7,000. On 4.1.1951 the present respondent executed a
rent agreement in favour of the present appellant for the building
__1. acknowledging her as her landlady@Rs.80 per month.
'
In 1963 the mother of the appellant by name of Ramalakshmi
Ammal died. In 1974 the respondent filed the suit from which the E
present appeal arises viz. Suit No. 79 of 1974 against the petitioner
appellant for conveyance of the property of the petitioner in favour of
the respondent on the ground of a 'Yadast' which was for the first time
produced with the suit and is alleged to have been written by the
":>... mother of the petitioner on 24.12.1950 which is marked as Ex. A-11, in
favour of the respondent. This document provided that respondent F

,,
• could get conveyance of the property in the suit from the petitioner
after paying the sale price of Rs. 7,000 and Rs.1,000 for registration
expenses. This 'Yadast' (so-called agreement) was on a plain piece of
paper which is neither stamped nor registered nor attested. It is also
significant that although this document is alleged to have been written
' on 24.12.50 even before the sale 'deed of the property itself was G
executed in favour of the appellant but this document was not even
"""' mentioned in the notice which wa~ served by the respondent on the
present appellant before this suit nor there is any reference anywhere
in any earlier correspondence nor there is a mention of this document
in the sale deed dated 27.12.1950 which apparently is of a date sub-
s_eguent _to 24.12.1950 nor there is any mention of it in the rent H
836 SUPREME COURT REPORTS [1989] 2 S.C.R.

A
agreement dated 4.1.1951 to which the present respondent himself is a +-
party.

By judgment dated 8.11.1978 the trial court (Sub Judge) relying
on this 'Yadast' decreed the suit filed by.the respondent.

B. On appeal the Additional District Judge after detailed examina-
tion of all the facts and evidence came to the findings of fact that the ',....._
present petitioner acquired title to the property on the basis of the sal~
deed which is a registered document in her favour and this property

c
was leased out to the respondent under a rent agreement. It also held
that as the mother of the petitioner was not a party to the sale deed she
had no right to agree to convey the property or to ask the daughter to
-
convey the suit property in favour of the respondent.

The plaintiff respondent was not a party to the sale deed (trans-
... '

feror) but is only a stranger who became a tenant under the rent
agreement. In fact the sale deed was executed by some other person
D and therefore this 'Yadast' could not be said to be an agreement to
reconvey the property as apparently both the parties to the 'Yadast'
one making the commitment to reconvey and another in whose favour
the commitment is made, are not parties at all to the original transac-
tion of sale. The learned Additional District Judge also came to the
conclusion that this document was not genuine and is a forged docu-
+
E men! which is invalid and was just got up for the purposes of this suit
and it has seen the light of the day for the first time after 23 years after
the date on which it purports to have been executed and for all these 23
years it was never referred to also. The learned appellate Court also
felt that the suit for specific performance was barred as it was filed
more than 20 years after the alleged 'Yadast' (agreement.)
~
p

•
The learned Judge of the High Court in second appeal by the
impugned judgment interfered with the findinll$ of fact arrived at by
the lower appellate court which was the final court of facts and went on
at length to reassess the evidence and not only to reassess but unfortu-
nately the circumstances have even been imagined to suggest the con- •·
0 nection between the 'Yadast' and the sale deed when in fact there is no
mention of this kind of document in the sale deed although it bears a \,,.
date even earlier to the sale deed and it is on this ground that the
special leave petition is filed.

The learned counsel appearing for the appellant contended that
H the suit for specific performance of the contract could only be decreed
SMT. ANNAPOORANI v. G. THANGAPALAM !OZA, J.I 837
l against the excutant of the contract provided the executant had a right A
to dispose of the property about which the suit is filed. Admittedly the
mother .of the present appellant who is alleged to have executed the
'Y adast' is not the owner of the property and the sale deed is in favour
of the present appellant does not disclose that the present appellant
purchased the property either as Benami on behalf of the mother or as
a nominee of the mother. It appears therefore that a theory of some B
---<. ~an and repayment was invented but the learned Judge of the High
ourt failed to notice that even if this agreement was genuine it could

-
only be enforced against the executant and not against the present
appellant.

In fact the theory of loan which was suggested and a case was
sought to be made out that the sale deed was not an out and out sale
c
t but only as a guarantee for the loan and therefore this 'Yadast' was in
substance a document of reconveyance. The learned Judge of the High
Court failed to notice that the respondent is not the person who
executed the sale deed in favour of the appellant. In fact both the
parties to the 'Yadast' are strangers to the sale deed and the sale deed D
does not refer to any one of them nor there is anything in the sale deed
to indicate that it was not an out and out sale.

~·· Unfortunately, the learned Judge of the High Court has not even
discussed the reasons on the basis of which the learned first .appellate
court had come to a finding of fact that this document is a forgecy and E
could not be said to be a genuine document .
•
The learned first appellate court came to this conclusion on the
basis· of the circumstances whic.h could not be denied-although this
;... document bears a date earlier than the sale deed and the rent agree-
!llent to which the respondent himself is a party but there is no mention F
of this document in anyone of those two documents. There is no refer-
A ence about this document for all these years i.e. from 1950 to 1974
even in the suit notice. It is also a circumstance relied on by the lower
appellate court that it is on ordinary piece of paper not a stamped
paper. It is not registered and it is not attested and in view of these
circumstances and especially of the fact that during the lifetime of G
~ Ramalakshmi Ammal, mother who is alleged to be the executant this .
document did not see the light of the day nor was referred to at any
stage. The learned lower appellate court came to a finding of fact and
the High Court unfortunately has not given reasons as to why these
circumstances should not be considered. The learned Judge has chosen
to interfere with the findings of fact solely on the basis of one ground H
838 SUPREME COURT REPORTS [1989] 2 S.C.R.

A that the evidence of the scribe of this document 'Yadast' was not -+--
discussed by the lower appellate court but the evidence of the scribe
who has chosen to write such a document is worthless and the learned
lower appellate court therefore was right in not relying on this
evidence.

B Section 100 of the Code of Civil Procedure provides as under: ;,..__
"Second appeal: (1) Save as otherwise expressly provide~
-
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
c involves a substantial question of law.
~
(2) An appeal may lie under this section from an appellate
decree passed ex parte.

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

(4) Where the High Court is satisfied that a substantial -+-
question of law is involved in any case, it shall formulate
E that question.

(5) The appeal shall be heard on the question so formu-
lated and the respondent shall, at the hearing of the appeal,
be allowed to argue that the case does not involve such
question: A
F
Provided that nothing in this sub section shall be
deemed to take 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"
\
G -~
A perusal of this Section clearly indicates that the High Court had the
jurisdiction to interfere only when a substantial question of law is
involved and even then it is expected that such a question shall be so
framed although the court is not bound by that question as the proviso
indicates. There may be some other substantial questions of law which
H may need decision and which can be so decided.
SMT. ANNAPOORANJ v. G. THANGAPALAM (OZA, J.] 839

.-J.. After going through the judgment of the High Court in this A
appeal we find that there is no substantial question of law and much
less a question of law on the basis of which the learned Judge exercised
jurisdiction under Section 100 and interfered with the findings of fact.

The only reason on the basis of which the High Court exercised
B
jurisdiction under Section 100 is what has been said by the learned
Judge himself:
~- "As already stated, its failure to consider the evidenr of

- P. W. 2 as well as its wrong surmise that Ex. B-16 series
contained the signatures of Ramalakshmi Ammal, has af-
fected the validity of the finding rendered by it."
It is well known that P. W. 2 is the scribe of a document which has
c
been found to be forged by the lower appellate court and therefore a
person who can go to the extent of manufacturing a document to suit
one of the parties to the litigation, in our opinion, cannot be said to be
an independent witness artd the lower appellate court was right in
D
discarding his testimony. Unfortunately the High Court felt that he
was an independent witne_ss.

The learned Judge felt that the signatures on Ex. B-16 of
Ramalakshmi Ammal is a mere surmise but this inference itself
appears to be nothing but imagination as the signatures prove the
receipt by Ramalakshmi Ammal of a notice from Tutocorin Munici- E
pality for the collection of house tax.

This all in the opinion of the learned Judge was a substantial
question of law which called for interference and it is clear that on such
questions which have no substance and which could not be said to be
even question of law, the interference by the High Court in second F
appeal could not be justified. At best the two questions on which the
High Court chose to interfere quoted above could be said to be ques-
tions of appreciation of evidence.

In our opinion therefore the High Court was not right in interfer-
ing with the findings of fact arrived at by the learned lower appellate G
court. The appeal is therefore allowed, the judgment of the High
Court is set aside and that passed by the lower appellate court is
restored. The appellant sha:ll be entitled to costs of this appeal. Costs
quantified at Rs.3,000.
H
N.V.K. Appeal allowed.