P.K Lohra, J.:— Appellant-defendants, having lost battle before both the Courts below, have invoked second appellate jurisdiction of this Court under Section 100 CPC. At the threshold, Civil Judge (Junior Division), Hanumangarh (for short, ‘learned trial Court’) decreed the suit of respondent-plaintiffs for declaratory relief and mandatory injunction, and in the appeal laid at the behest of appellants, Additional District Judge No. 1, Hanumangarh (for short, ‘learned lower appellate Court’) has affirmed the judgment and decree of the learned trial Court.
2. Succinctly stated, the facts of the case are that respondent-plaintiffs instituted a civil suit for declaratory decree and perpetual injunction against appellants. The respondent-plaintiffs sought declaration that registered sale-deed dated 8th of June, 2000, in favour of defendant No. 3, for a land measuring 8 bighas, be declared null and void, and further a registered gift deed executed on 7 of June, 2007 in favour of second defendant be also declared as null and void. A perpetual injunction was also sought that appellant-defendants be restrained perpetually from alienating or transferring the agricultural land, which is subject-matter of these two instruments, namely, registered sale-deed and the gift-deed. For claiming these reliefs, the respondent-plaintiffs have averred in the plaint that they are daughters of the first defendant Devilal (since deceased) from his first wife Chando Devi besides their sister Manju. After death of Chando Devi on 29 of September 1983, as per the version of respondent-plaintiffs, defendant Devilal entered into matrimony with Smt. Rukma Devi widow of Late Shri Dilip Kumar Jat. At the time of marriage, Rukma Devi had a son from her earlier husband Late Shri Dilip Kumar, who also joined the family of Devilal in the capacity of son and started living with them. Devilal was the only son of his father Surjaram who, at the time of his death, was owning land in Chak 14 JDW, Tehsil Hanumangarh, details whereof is as under:-
Chak No.Stone No.Kila No.Total14 JDW54/233(11)1 to 4, 5/.10, 6/0.15, 7/0.07, 8/0.13, 14/0.18, 15 to 19, 20/0.1316.18 bighas53/238 (39)11 to 20, 21/0.14, 22/0.14, 23/0.14, 24/0.14, 25/0.1413.10 bighas54/238 (40)16 to 18, 23/0.14, 24/0.14, 25/0.1405.02 bighas
3. After death of Surjaram, the said property was mutated in the name of Devilal in revenue records in the year 1998 and same continued to remain in his possession. Making serious insinuations against Smt. Rukma Devi, respondent-plaintiffs categorically averred in the plaint that Devilal after marrying Rukma Devi remained under her influence and started ill-treating the respondent-plaintiffs. Respondent-plaintiffs have set out a specific case that their marriages were solemnized by grandfather during his lifetime and after his death their father Devilal virtually stopped treating them as his daughters and ignored them for all practical purposes and also deprived them of his love and affection. Respondent-plaintiffs further pleaded that Devilal and Smt. Rukma Devi hatched a conspiracy to deprive them of their share in the agricultural land and when it came to their notice, they instituted a civil suit on 12 of February, 2008 for partition and declaration of their rights with respect to the agricultural land before the revenue Court, i.e, Assistant Collector, Hanumangarh. In that suit, a reply was jointly filed revealing that out of total agricultural land situated at Stone No. 54/233 in Killa No. 1 to 4/1.012, 5/0.126, 7/0.089, 8/0.164, 9-10/.506, 11/0.127, (total 2.024 hectares) eight bighas of land ws transferred to defendant No. 3 by a registered sale-deed dated 08.06.2000 and part of agricultural land situated at Stone No. 54/233 in Kila No. 6/0.0190, 14 to 17/.987, 18/.062 at Stone No. 55/238 Kila No. 11 to 20/2.530, 21 to 25/0.885 at Stone No. 54/238, Kila No. 16 to 18/.759, 23 to 25/.531, (total 5.944 hectare) has been donated to Mangi Lal by a registered gift-deed dated 7 of June, 2007. Categorizing both these instruments as null and void, the respondent-plaintiffs have stated in the plaint that these two instruments are ineffective vis-a-vis their rights in the aforesaid agricultural land, and therefore, to the extent these documents be declared null and void.
4. To question the legality of sale-deed, respondent-plaintiffs in the suit have pleaded that the entire sale transaction is sham inasmuch as the same was without any consideration. It is also averred that the sale transaction is under serious cloud for the reason that possession of land was not handed over and the land continued to remain in possession of Devilal, and the revenue record also reflects the same fact. To castigate the sale transaction as a fictitious and sham, respondent-plaintiffs have also pleaded that even after execution of sale-deed, Devilal projected himself as owner of the land and has obtained agricultural loan from financial institution by mortgaging the said land. With all these averments, respondent-plaintiffs pleaded that this entire fraud which was practised by Devilal and Rukma Devi in collusion cannot adversely affect their rights in the agricultural land. Asserting that the agricultural land was ancestral and after amendment in the Hindu Succession Act, w.e.f 09.09.2005, both the respondent-plaintiffs are co-owners and have share in the property. For claiming their share in the property, according to respondent-plaintiffs, revenue suit filed by them is also pending before the competent Court.
5. The gift-deed is also assailed while questioning the competence of Devilal, inasmuch as according to respondent-plaintiffs, it was also a part of joint family property and as such without partition Devilal was not competent and authorised to execute the gift deed. Taking serious exception to the gift deed, which is a bilateral document signed by second appellant as donee, when he was minor, respondent-plaintiffs have set out a case that a minor is not competent to enter into a contract, and therefore, the gift deed is also void ab-initio and same is liable to be declared as such.
6. With all these pleadings, respondent-plaintiffs have also prayed for a relief of perpetual injunction as aforesaid.
7. After consideration of pleadings of the rival parties, the learned trial Court settled five issues for determination.
8. On behalf of respondent-plaintiffs four witnesses were examined and in all 29 documents were produced, which were exhibited. In defence, the appellant-defendants also examined four witnesses.
9. The learned trial Court examined Issue No. 1 in conjunction with evidence and other materials available on record. In order to analyse true nature of the sole transaction, learned trial Court has made sincere endeavour to dilate on the relationship between first appellant and Late Devilal. It is an admitted fact that when Rukma Devi married Devilal, she had a son, the first appellant Rajkumar, from her pre-deceased husband Dilip Kumar, and after marriage she brought him with her for staying with Devilal. At the time of marriage of Smt. Rukma with Devilal, Rajkumar was about 5-6 years old and as he was brought up by Devilal, a relationship of father and son established which continued till Devilal was alive. Therefore, a fiduciary relationship has actually laid to the execution of sale in favour of first appellant. Furthermore, the learned trial Court has also taken note of the fact that there is no material available on record to show that what was necessity for Devilal to transfer the land in the name of first appellant Rajkumar at the cost of depriving the respondent-plaintiffs of their share in the land. The learned trial Court has also found the sale transaction questionable and in fact sham for the reason that even after the said sale transaction, which was of 2000, the land continued to remain in possession of late Devilal and the instrument of sale also remained in his possession. Payment of consideration by first appellant Rajkumar was also not proved before the learned trial Court inasmuch as there was no cogent evidence to show that he had requisite means to pay the consideration amount. Even Devilal (D.W.5), maternal uncle of first appellant Rajkumar, from whom he allegedly borrowed a sum of Rs. 1 lac has not been able to prove lending money to Rajkumar. On the issue relating to payment of amount, statements of D.W.5 are absolutely vague and evasive and not inspiring confidence. Therefore, in totality, the learned trial Court has found that there was no proof about passing of consideration amount and further retaining the possession of property by Devilal and existence of fiduciary relationship created a serious scar on the entire transaction, which cannot be categorised as a genuine sale transaction but a sham one. With this finding, Issue No. 1 is decided against appellant.
10. While switching on to Issue No. 2, whereby part of the property is gifted by Late Devilal in favour of Mangilal on 06.07.2007, the learned trial Court has considered the gift-deed in light of the age of donee, i.e Mangilal, the second appellant. On evaluation of evidence and materials available on record, the learned trial Court has found that gift-deed, a bilaterial document, signed by doner as well as donee, is a void document inasmuch as at the time of execution of the document, second respondent was minor. It goes without saying that gift-deed is a compulsorily registrable document under Section 17 of the Indian Registration Act, 1908. In order to ascertain the exact age of second appellant at the time of execution of gift-deed, learned trial Court has placed reliance on the mark-sheet of secondary school examination, wherein his date of birth is mentioned as 4 of March, 1990, and therefore, at the time of execution of gift-deed, he had not attained the age of majority, i.e, 18 years. In that background, while deciding Issue No. 2, learned trial Court has found that the, on the face of it, gift-deed is void. Third issue, which is based on the cumulative finding on Issues No. 1 & 2, is also decided against appellants by the learned trial Court. Issue No. 4 relating to limitation was decided against appellants and in favour of respondents for not discharging burden to prove by the appellants. Issue No. 5, related to jurisdiction of the Court and the burden of proving the same was on the appellants. The learned trial Court, on analyzing the evidence, found that the appellants have failed to discharge their burden and consequently the said issue is also decided in favour of respondent-plaintiffs. All these findings led to a favourable decision on the suit and the suit of the respondents is decreed by the learned trial Court.
11. Feeling aggrieved by the judgment and decree of the learned trial Court, appellants approached the learned lower appellate Court and the learned lower appellate Court after thrashing out the matter afresh fully concurred with the findings and conclusions of the learned trial Court. Learned lower appellate Court also noticed the relevant factors, which were castigating shadow on the sale transaction and recorded its agreement with the learned trial Court. Adverting to the gift-deed, the learned lower appellate Court found the same to be void by considering the relevant fact that at the time of execution of gift-deed donee had signed the said instrument without any legal authority, as he was minor. In that background, the learned trial Court, while fully concurring with the findings and conclusions of the learned trial Court, dismissed the appeal. It is in these circumstances, the appellants are in second appeal.
12. I have heard learned counsel for the parties, perused impugned judgments of both the Courts below and also thoroughly scanned record of the case.
13. After examining the matter in its entirety and the findings of the learned trial Court, which have been approved by the learned lower appellate Court on all the crucial issues, I have no hesitation in upholding the same inasmuch as the findings and conclusions are neither perverse, nor infirm or contrary to the evidence and materials available on record. There is obviously nothing on record to show that the learned Courts below have misconstrued the evidence available on record in recording findings against the appellants. The sale transaction, which was the bone of contention, is admittedly without delivery of possession and receipt of consideration amount, cannot confer any right on the vendee, more particularly, in the facts of the instant case, when there exists reasonable apprehension to conclude that the same is a sham transaction. There is yet another mitigating factor noticed by this Court is that the very same agricultural land was mortgaged by Late Devilal with Bank for obtaining financial assistance after execution of sale. Having transferred the property by a registered instrument, Devilal had no right to mortgage the said property with the Bank for availing bank loan, which poses a serious question castigating shadow on this sort of transaction. As a matter of fact, in the evidence tendered by P.W.1 Nathi Devi and P.W.2 Sukhi Devi, positive assertion is made that Devilal mortgaged the said property with Bank for availing loan, which has not been impeached during cross-examination. Although, in examination in chief, both the witnesses have made a categorical statements about this particular aspect of the matter, but during cross-examination this part has not been impeached so as to conclude that in fact after sale transaction, the property continued to remain with Devilal and he showing it to be his own mortgaged the same with Bank for availing financial assistance. In that background, I am at completely loss to understand how such transaction can be treated as a genuine and valid transaction, rather is a sham transaction, on the face of it, which was nothing but to camouflage the things. In these circumstances, I am afraid, findings of both the Courts below on this aspect of the matter cannot be faulted and the said concurrent finding is not liable to be upset in exercise of second appellant jurisdiction.
14. In the case of Madan Singh v. Suraj Kanwar [2012 (1) RRT 363], Co-ordinate Bench of this Court, while considering first appeal, made endeavour to examine Section 4 of the Benami Transaction (Prohibition) Act, 1988. Therefore, in that background, while taking note of the fact that seller has received the consideration and possession was also handed over to the purchaser, the Court allowed the appeal and set aside the judgment. Present case is factually distinguishable for the reason that, in the present case, respondent-plaintiffs have set out a case that the land, which was part of the sale transaction, was a coparcenary property and there was no partition of the property. Moreover, some other factors, namely, retaining possession by Late Devilal after sale and mortgaging the same land to the Bank are some of the factors, which rendered sale transaction as a sham transaction. In this view of the matter ratio-decidendi of this judgment cannot render any assistance to the appellants so as to disturb the concurrent finding of fact recorded by both the Courts below on Issue No. 1.
15. Now adverting to the gift-deed, there remains no quarrel that a gift-deed is required to be registered compulsorily and Sections 17 and 17(1)(a) of the Act envisage with clarity and precision that an instrument relating to gift of immovable property is compulsorily registrable. True, it is that registration of the gift-deed was carried out but then the same was signed by second appellant as a donee when he was minor.
16. Section 11 of the Indian Contract Act, 1872 (for short, ‘Act of 1872’) clearly envisages that a minor is not competent to enter into a contract. It further envisages that one who is of sound mind and is not disqualified from contracting by any law to which is subject is competent to contract. In Mohoribibee v. Dharmodas Ghose, (1903) ILR Cal 539 (PC), Privy Council ruled that the Act makes it essential that all the contracting parties should be competent to contract and a minor cannot make a valid contract.
17. Well it may be true that gift-deed was made by Devilal in favour of second appellant Mangilal, but, on the face of it, being minor he was not competent to receive the gift as donee. As the gift-deed is executed by Devilal in favour of Mangilal and the same has been signed by Mangilal when he was minor, the very contract itself was void ab-initio.
18. In K. Kamalam v. K. Balakrishnan [AIR 2004 SC 1257], on which learned counsel for the appellants has placed reliance, Hon'ble Apex Court, while dealing with Section 11 of the Act of 1872, has held that a minor may not be competent to contract but is not incapable of receiving property if it is gifted to him. The Court held:
A minor in law suffers from certain specified disabilities. A minor is not competent to enter into a contract. Section 11 of the Contract Act states:-
“11. Who are competent to contract. -Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”
A minor suffers disability from entering into a contract but he is thereby not incapable of receiving property. The Transfer of Property Act does not prohibit transfer of property to a minor. Section 122 of the Transfer of Property Act defines ‘Gift’ thus:-
“122. Gift” defined. - “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.”
19. There remains no quarrel in the legal position that a minor can receive gift, which is a transfer of property under Section 122 of the Transfer of Property Act, but if a donee is minor then it has to be received by someone else on his behalf. In the instant case, position is quite topsy-turvy inasmuch as the instrument of gift clearly indicates that it is received by donee, Mangilal, when he was minor. In such a situation, the said decision cannot render any assistance to the appellants and the legal infirmity in the gift-deed in terms of Section 11 of the Act of 1872 renders it void ab-initio and the finding of the Courts below, in this behalf, cannot be faulted.
20. Therefore, in totality, finding on Issue No. 2 is just and proper in the facts and circumstances of the case, which cannot be categorised as infirm or perverse from any stretch of imagination. On the other issues, learned trial Court has recorded findings against appellants after examining the matter threadbare, and therefore, those findings are also absolutely just and proper warranting no interference.
21. At this juncture, it is also relevant to consider one important aspect of the matter that transfer of property in favour of second appellant by Late Devilal was in respect of coparcenary property and there is no semblance of proof that there was any partition of the property. The respondent-plaintiffs have set out a specific case that entire property is inherited by Devilal from his father and a litigation pertaining to its partition was pending before Revenue Court, and therefore, in such a situation as a coparcener Devilal was not competent to gift or transfer undivided share in the coparcenary property at the cost of depriving the respondent-plaintiffs from their share. Reliance, in this behalf, can be profitably made to a decision in Baljinder Singh v. Rattan Singh [2008 DNJ (SC) 875], on which learned counsel for the respondents has placed reliance. In the said verdict, Hon'ble Apex Court held:
18. In Thamma Venkata Subbamma (dead) by Lrs. v. Thamma Rattamma ((1987) 3 SCC 294) it was observed as follows:
“12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions Instead, we may refer to the following statement of law in Mayne's Hindu Law, eleventh Edn., Article 382:
“It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid….A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
13. We may also refer to a passage from Mulla's Hindu Law, fifteenth edn., Article 258, which is as follows:
Gift of undivided interest. - (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.
14. It is submitted by Mr. P.P Rao, learned counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a ‘coparcener’ is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.
17. It is, however, a settled law that a coparcenary can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid”.
19. We may also refer to a passage from Mulla's Hindu Law, Seventeenth Edn., (Article 258), which is as follows:
“Gift of undivided interest- (1) According to Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparcener”.
20. In Mayne's Hindu Law, XIV Edn. It has been noted as follows:
“Gifts of affection-The father's power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v. Narayana (1922 (49) IA 168) the Privy Council held that “the father has undoubtedly the power under the Hindu Law of making within reasonable limits, gifts of movable property to a daughter”.
By Will-But such gifts through affection of joint family property when they are by will, are invalid, because the right of the coparceners vests by survivorship at the moment of the testator's death, and there is accordingly nothing upon which the will can operate. In Subbarami v. Ramamma (1920 (43) Mad 824) the Madras High Court held that a will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid as against his infant son through it would have been a proper provision if made by him, during his lifetime. This may be in a sense right. There is however no compelling logic in not regarding wills “as gifts to take effect upon death at least as to the property which they can transfer and the persons to whom it can be transferred”. Convenience would seem rather to point to the extension to the sphere of Hindu Law of the general principle of jurisprudence that what a man can give by act inter vivos, he can give by will”.
21. In view of the decision in Venkata Subbamma's case (supra), the decision of the High Court so far the gift is concerned, does not warrant any interference.
22. So far as the question whether the gift is void or voidable much depends on the factual scenario. The distinction between void or voidable is summarized as follows:
“De Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, 5, para 5-044, have summarized the concept of void and voidable as follows:
“Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record.” Clive Lewis in his work Judicial Remedies in Public Law at p.131 has explained the expressions “void and voidable” as follows:
“A challenge to the validity of an act may be by direct action or by way of collateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of which is not to establish invalidity but where questions of validity become relevant.”
23. In Sunil Kumar v. Ram Parkash (AIR 1988 SC 576) it was noted in paras 23 and 24 as follows:
23. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee, [1856] 6 M.I.A 393. There it was observed at p. 423: (1) “The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate.” This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations:
24. Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11 ed. para 396].
24. In Sadasivam v. K. Doraisamy. (AIR 1996 SC 1724) it was found that when the father has executed sale deed in favour of a near relative and the intention to repay debt or legal necessity has not been proved as a sham transaction.
22. In Kanna Gounder v. Arjuna Gounder [AIR 2003 Mad. 157], Madras High Court, while examining the issue relating to gift by a coparcener without consent of other co-parceners in want of proof about earlier partition, has held:
9. The lower appellate Court has observed in the judgment that P.W.1, namely, the second plaintiff, has admitted in his examination that the suit properties were earlier partitioned and the plaintiffs and defendant were residing in the portions allotted to them and hence it is clear that there was earlier partition. The counsel for the appellants vehemently contends that there was no such admission made by P.W.1 in the box and the finding of the lower appellate Court is palpably wrong and without any basis. A reading of the testimony of P.W.1 shows that only a suggestion has been put to him regarding the alleged partition and he has denied the same. In such circumstances, the conclusion of the lower appellate Court in this regard is erroneous. The lower appellate court has further relied on Exs.B-3 to B-7 for accepting the case of the defendant. Exs.B-3 to B-5 are the house tax receipts standing in the name of Chinnaraju. Ex.B-6 is the house tax receipt standing in the name of defendant. Ex.B-7 is the extract of house tax demand register maintained by the village panchayat. Based on Exs.B-3 to B-8, the lower appellate Court has concluded that there was earlier partition and the parties are in enjoyment of separate properties. It has to be borne in mind that the case of the plaintiffs itself is that the suit properties are enjoyed by them and the defendant in common and parties are residing in separate portions therein. Exs.B-3 to B-6 may show that the parties are in enjoyment of separate portions of the suit properties, but they do not prove partition. Exs.C-1 and C-2 are the report and plan of the Commissioner, who was examined as P.W.2 The Commissioner has only spoken about the enjoyment of the properties by the parties. As already seen, there is no dispute with regard to common enjoyment of the properties. The defendant has not substantiated his contention that there was earlier partition of the suit properties. Hence it can be safely concluded that the suit properties are undivided properties belonging to the joint family and if that be so, the plaintiffs are entitled to undivided 1/3rd share which belonged to their father.
23. Therefore, in totality, even on the touchstone of settled legal position, there remains no scope to upset the finding of fact recorded by both the Courts below in unison. Yet another impediment for the appellants, in the instant case, is that they are pitted against the concurrent findings of fact, and more particularly the findings arrived at by the last Court of fact, the first appellate Court.
24. It is needless to emphasize here that in exercise of jurisdiction under Section 100 CPC, this Court is not obliged to reinvestigate the grounds on which findings are arrived at by the first appellate Court. May be, in a given circumstances, two inferences of fact are possible, one drawn by the lower appellant Court is not liable to be interfered with by this Court in second appeal. Interference may be warranted if it is borne out from the findings of the learned lower appellate Court that the findings are per-se erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by Hon'ble Apex Court, or founded on inadmissible evidence, or arrived at by ignoring material evidence. In totality, no such situation is available in the instant case, and the leaned lower appellate Court, while approving the findings and conclusions of the learned trial Court, has delved deep into the matter and has rightly concurred with the findings and conclusions of the learned trial Court.
25. True it is that “substantial question of law” occurring in Section 100 CPC is not defined in the Code but the same has to be deduced from the legal precedents. The word ‘substantial’ as qualifying “question of law” means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradiction with-technical, of no substance or consequence, or academic merely. The substantial questions of law, canvassed by the appellants, if examined on the touchstone of the aforementioned tests, then the same are not satisfying the requirements envisaged therein.
26. Consequently, I am not persuaded to interfere with the impugned judgments, and therefore, the instant appeal merits dismissal.
27. Resultantly, appeal fails and same is, hereby, dismissed summarily.
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