SHABBIRBHAI SAMSHERBHAI BALUCHI v. AYSHABIBI D/O GULAMBHAI SIDHIBHAI

the appellant dated 10.03.2000 was declared null and void as it is found in contravention of provisions of Muslim law, further Defendant was directed to hand over the peaceful and vacant possession of the suit property to the plaintiff.

2. The Appellant is original Defendant - Respondent is original Plaintiff hereinabove, for the sake of brevity and convenience, they are referred to as their original status before the Ld. Trial Court.

3. The factual background of the case is that the immovable property bearing Sit No. 32, Survey No. 285 in Ward No. 7 of Rajpipla Nagar Palika, being House No. 222, (hereinafter referred to as 'Suit property') was owned by the deceased Ghulam Bhai, who expired on 17 March 2000. The plaintiff, Ayesha, is the sole daughter of the deceased Ghulam Bhai. The wife of the deceased Ghulam Bhai, namely Hajrabibi, expired on 4 September 2000. The Plaintiff filed a civil suit before the Ld. Trial Court inter alia on the averment that the defendant had got executed a fraudulent Will, on a stamp paper of Rs. 50/-, of the deceased Ghulam Bhai in regard to the suit property. On the basis of such fraudulent Will, the defendant intended to enter his name in the revenue record of the suit property, but the plaintiff filed an objection.

4. It is the case of the plaintiff that the deceased Ghulam Bhai had inherited the suit property from his father, late Siddik Bhai, who had purchased the said property by a

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registered sale deed and thereafter constructed a residential house upon it. The possession of the suit property was with the plaintiff. However, taking advantage of the ailments and the illness of the deceased Ghulam, the defendant got executed a Will in his favour in regard to the suit property. The Will was executed when the deceased was under intensive treatment in the S.S.G. hospital, and thus, without explaining the contents of the document, the defendant got executed the Will just seven days prior to the death of the deceased Ghulam Bhai. The plaintiff further contended that they are professing Muslim religion, and in view of the provisions of Muslim law, a Will of more than 1/3 of the property of the deceased is not permissible without the express consent of the successor. The plaintiff further contended that neither her late mother nor she consented to the Will, and therefore, execution of the Will is suspicious, doubtful and fraudulent. Accordingly, the Plaintiff claimed the relief to declare the Will dated 10th March 2000 alleged to have been executed in favour of the defendant, being contrary to the principles of Muslim law and null and void, and also seeks possession of the suit property.

5. The defendant having been served, filed the written statement at Exhibit 12 and denied the plaintiff's claim in toto. Further, the defendant submitted that the suit regarding the disputed property is barred by the principles of estoppel as well as the principle of limitation. The defendant has been in possession of the suit property for a long period. Since the deceased Gulambhai had no male child, he adopted the

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defendant as a child at the age of four, and pursuant to love and affection executed a Will on 10.03.2000, thereby transferring the suit property to the defendant. One more contention was raised in the defendant's submission that the plaintiff had given consent to record the name of the defendant in the revenue records by executing a writing on 29.12.2001, therefore, he submitted that the plaintiff's suit is not maintainable and ought to be rejected.

6. The learned Trial Court framed the issues and permitted both parties to lead evidence. After hearing the arguments of the learned advocates for the parties, the Trial Court allowed the plaintiff's suit and passed the final order as stated hereinabove. The first appeal was filed by the defendant, being aggrieved by the judgment and decree delivered by the learned Trial Court; however, it did not yield result in favour of the defendant. The first appeal was dismissed, upholding the validity and legality of the judgment and decree passed by the learned Court below.

7. The Appellant, being further aggrieved by the judgment and decree in the first appeal, preferred the second appeal on various grounds stated in the Memo of Appeal with following questions posing them as substantial questions of law:-

(a) Whether the Plaintiff has proved a case under Mohammedan Law and the validity of one third share of the suit property?

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(b) Whether the Plaintiff has proved that the agreement of settlement between the plaintiff and the defendant does not bind the plaintiff and validity of the same under the personal law/Mohammedan law?

(c) Whether the Plaintiff has disproved the validity of an agreement 29.12.2001 of the relinquishment, waiver by the plaintiff herein?

(d)Whether the learned Trial Court and learned Appellate Court were justified by not framing a specific issue of time barred of the suit before the learned Trial Court, which otherwise caste duties upon the learned Trial Court under Order 14 rule 4 ?

e) Whether the plaintiff is permitted to raise dispute in the form of the suit after settlement deed between the plaintiff and the defendant herein?

(f) Whether the law principle of estoppel permits the plaintiff to resile from the settlement deed between the plaintiff and the defendant?

(g) Whether the learned Trial Court and learned Appellate Court was justified by not giving findings on possession and further by deciding the issue of possession under the specific provisions of the Specific Relief Act, 1963 ?

(h)Whether the learned Trial Court (Original Civil Court) settle an issue that parties have acted under the provisions of the Indian Contract Act?

(i) Whether the learned Trial Court was proper to decide the suit in whole, where suit of the plaintiff is bar by law of limitation as the testator of will has expired in the year 2000 and the suit was brought in the year 2008 after an agreement on 29. 12. 2001?

(j) Whether the learned Courts below have erred by believing that the suit of the plaintiff is bar by law of limitation under the Limitation Act, 1963 and the suit lacks for proper cause of

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action??

(k) Whether learned appellate court considered and framed one of the point for determination i.e. question of law of limitation, cause of action and Court Fees; whether the findings by the learned appellate court are as per the provisions of the Limitation Act, 1963 ?

(1) Whether learned Courts below were justified by allowing the suit and by believing the the suit beyond the prayers of the plaintiff?

(m) Whether an act of the plaintiff of ratification of the will drawn in favour of the applicant and later on resile from the same that the same is not binding on her?

(n) Whether the lower appellate court has committed serious error of law in not considering various judgments delivered by the Hon'ble Supreme Court?

8. Ld. Advocate Mr. Ankur Oza appears on behalf of the Respondent on Caveat.

8.1 Paper book is supplied.

9. In order to admit this Second Appeal, Ld. Advocate Mr. Dhruv Dave made a limited submission that the Ld. Trial Court has ignored the oral evidence in context to the documentary evidence produced at Exh. 111 which is consent letter signed by the Plaintiff. It indicates that she has no objection in mutating the name of the Defendant in Revenue Record qua the Suit property. Ld. Advocate Mr. Dhruv Dave therefore submitted that after execution of this consent letter, dated 29.12.2001, the Plaintiff has no right to file a Suit

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claiming that the will of deceased Gulambhai for the entire estate is invalid and against the principles of Muslim law. Second submission of the Ld. Advocate for the appellant was to the effect that the Ld. Trial Court has framed the issue No. 2, whether the Plaintiff proves that the Defendant has got executed a will dated 10.03.2000 taking advantage of the illness of deceased Gulambhai and he being hospitalized in SSG Hospital and thereby prepared a forged will pressurizing and coercing him? The issue No. 2 has been answered in negative by the Ld. Trial Court below which establish that execution of will of Gulambhai was proved to be last will executed under his free will and consiousness. Against the finding of issue No. 2, the Org. Plaintiff has not filed any appeal hence, the finding of issue No. 2 attained finality. In juxtaposed to that, the issue No. 2 favours the defence of the Defendant that he become the owner of the Suit property as it being bequeathed to him by the deceased Gulambhai. He further submitted that if the will dated 10.03.2000 is hit by principles of Muslim law, the defendant would at least has entitled to get 1/3 of the entire bequeathed property, which is permissible. In line of the aforesaid submissions, Ld. Advocate Mr. Dhruv Dave submits to admit this Appeal.

10. For the perusal of the facts in context to the submission made by Mr. Dhruv Dave, let refer the issues which are fixed in Suit at Exh. 15 as under:-

(1) Whether the Plaintiff proves that the property, as

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described in Para-1 of the Plaint, has devolved upon the Plaintiff as ancestral property, having been acquired by the Plaintiff's grandfather, Siddikbhai Alambhai Shaikh, from the Rajpipla Municipality by way of sale at the price of 1/- per₹ square foot?

(2) Whether the Plaintiff proves that the Defendant, taking advantage of the Plaintiff's father being ill and hospitalized at S. S. G. Hospital, Vadodara, and by exercising duress and allurement, executed a false Will on 10/03/2000 on stamp papers of 20/- and 10/- value?₹ ₹

(3) Whether the Plaintiff proves that the Defendant has taken illegal possession of the suit property on the basis of the false Will?

(4) Whether the Plaintiff proves that, according to Mohammedan Law, no Muslim individual can make a Will for more than 1/3rd share of the property ?

(5) Whether the Defendant proves that the Plaintiff's suit is barred by the law of limitation?

(6) Whether the Defendant proves that since the Plaintiff's parents had no son, they raised the Defendant as their son from childhood, and that they executed a Will concerning their movable and immovable properties in the presence of relatives during their lifetime?

(7) Whether the Plaintiff entitled to the relief as prayed for ?

(8) What Order and Decree ?

11. Both the parties have led the evidence and after analyzing the evidence, the Ld. Court below answered Issue No. 1, 3, 4 and 7 in 'affirmative' and answer the rest of the issue in 'negative' and passed the final order.

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12. What would be noticeable that issue No. 4 is with regard to whether according to the Mohammedan Law, a person professing Muslim religion can make a will more than 1/3 of his estate. The issue No. 4 has been dealt by the Ld. Trial Court in para 11 of the impugned judgment as under:-

"11.Now keeping aside the execution of the Will , here it is further relevant to take into consideration the other important submission of the plaintiffs that, the Will is in contravention of the provisions of the Mohhamedan Law. The learned advocate for the plaintiffs argued that, as per Muslim Law no person can bequest more than 1/3rd of his property by way of Will, here in present case the so called Will is not valid and legally enforceable as it contravenes the basic principles of Muslim Law, considering the above contention of the plaintiffs it is relevant to look in to the provisions of Muslim Law in this regard, First if we see the principles relating to inheritance,which normally based on Quranic commands and customs prevalent in community. First of all as per Muslim law,heritable property is that property which is available to the legal heirs for inheritance. After the death of a Muslim, his properties are utilized for the payment of funeral expenses,debts and the legacies i.e. Wills, if any. After these payments,the remaining property is called heritable property. Under Muslim law, every kind of property may be a heritable property. For purposes of inheritance, Muslim law does not make any distinction between corpus and usufruct or,between movable and immovable, or, corporeal and incorporeal property. Under English law, there is some difference in the inheritance of movable and immovable property. But, under Muslim law there is no such distinction;any property, which was in the ownership of the deceased at the moment of his death, may be the subject matter of in heritance. The concept of a joint family or of coparcenaries property (as is recognized under Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his properties are again inherited by his legal heirs, and this process continues.

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Thus, unlike Hindu law, there is no provision for any ancestral or joint family property. Accordingly, under Muslim law of inheritance, no distinction has been made between self acquired and ancestral property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded as an individual property and, may be inherited by his legal heirs. Inheritance opens only after the death of a Muslim. No person may be an heir of a living person (Nemoest haeres viventis). Therefore,unless a person dies, his heirs have no interest in his properties. Unlike Hindu law, the Muslim law of inheritance does not recognize the concept of 'right by birth'

Under Muslim law, an heir does not possess any right at all before the death of an ancestor. It is only the death of a Muslim which gives the right of inheritance to his legal heirs. As a matter of fact, unless a person dies, his relatives are not his legal heirs; they are simply his heir apparent and have merely a 'chance of succession, (spes successions). If such an heir apparent survives a Muslim, he becomes his legal heir and the right of inheritance accrues to him. If the heir apparent does not survive a Muslim, he cannot be regarded an heir and has no right to inherit the property. Importantly Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs include also the females then, male and female heirs inherit the properties simultaneously. Males have no preferential right of inheritance over the females, but normally the share of a male is double the share of a female. In other words, although there is no difference between male and female heir in so far as their respective rights of inheritance is concerned but generally the quantum of property inherited by a female heir is half of the property given to a male of equal status(degree). The principle that normally the share of a male is double the share of a female has some justification. Under Muslim law, while a female heir gets (or hopes to get in future) an additional money or property as her Mehr and maintenance from her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is primarily liable for the maintenance of his children whereas, the female heir may have this liability

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only in an extraordinary case. Further A widow is entitled to one eighth share of her husband's property when there are children and one fourth share when there are no children. Now after looking into the aspect of the share of the property, it is relevant to take in to consideration the other important submission of the plaintiffs that the Will is in contravention of the principles of the Mohammedan Law. The learned advocate for the plaintiffs argued that, as per the Muslim Law, no person can bequest more than one third of his property by Will, therefore here in present case the so- called Will, if believed then also not valid legally and not enforceable. Considering the above arguments it is incumbent to take in to consideration the relevant principles of the Mohhamedan Law . On having glimpse of the historical backgrounds of rules of Will in Islam, the Quranic commands prescribe that, "when death approaches any of you, if he leave any property that he make a bequest to parents and next to kins, according to reasonable usage; this is due from God fearing (Quran Sura 2 : Ayat 180). So, as perthe customs which have been reported to have emanated from Quran provided some details for disposing of the property of a deceased Muslim. According to the Prophet and Bukhari, making a Will by Muslim is almost a Devine duty(though optional), therefore as per the Quranic command and the traditions of the Prophet Islam has recognized the practice of giving one's properties through Will but at the same time Islamic Law mainly based on Quranic command and the traditions of Prophets and Hanafi Law, Hedaya and Fatwa-E- Alamgiri, have created a balance by giving the testator a limited right to dispose of his property according to his wishes and at the same time the power has been limited to safeguards the interests of the heirs and this tradition is accepted by all school of Islamic Law, no Muslim is empowered to dispose of his estate more than one third through a Will which remains after payment of funeral expenses, debts and expenses for administration of the estate,the only exception where Will disposing of more than one third of estate would be validated when the other heirs give their free consent and that too after the death of the testator. But if a Will bequests legal one third to a stranger(who is not an heir), it would be perfectly valid,

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binding on heirs and lawful, otherwise it would be invalid without the consent of the heirs. In case the testator has no heirs at all,only then he could bequeath his whole property to a stranger. Now, considering the above position of Islamic Law.

Here in present case the parents of the plaintiff have made a Will to bequeath all the properties to the defendant(stranger) without express consent of the plaintiff (who is the only heir) is apparently against the principles of Islamic Law and hence the argument of the plaintiffs seems valid and sustainable, hence it is clear that absolute Will without express consent stands invalid. Hence I proceed to answer issue no. 4 in affirmative."

13. What appears from the perusal of the aforesaid findings of the Ld. Civil Court that the law of inheritance governing the Muslim has been thoroughly discussed by the Ld. Civil Court. Different legal eventuality is recorded in accordance with the inheritance of the estate on death of Muslim person. It is recorded by the Ld. Trial Court that the Quranic command and the traditions of Prophets and Hanafi Law, Hedaya and Fatwa-E-Alamgiri, created a balance by giving a limited right to the testator to dispose of his property by way of will, goes with a view to safeguard interest of the heirs. All the school of Islamic law has accepted this theory and also held that no person professing Muslim law is empowered to dispose of his estate more than one third through a Will which remains after payment of funeral expenses, debts and expenses for administration of the estate. The exception noted by the Ld. Trial Court that if surviving heirs consented to bequeath the entire property, the testator can do so but the condition precedent is that express and free consent of surviving heir

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should be obtained by the testator. The aforesaid issue again was discussed by the First Appellate Court in Impugned Judgment passed in Regular Civil Appeal No. 30/2019 as under:-

"Now issue no. 4 whether plaintiff proved that as per Mohhamedan law no Muslim person can make a Will more than 1/3 of his total property. In regard to said issue first of all it is necessary to go through the provision of Muslim law, as per Muslim law a Will executed by a Muslim is known as "Wasiyat", the concept of Will under Islamic law is a sort of bargain between two different propensities. One, the view of prophet is clear that after the death of a person, his property has to be distributed to his heirs and this rule is considered as divine law and any interference to it is unacceptable. On the other hand, it is moral duty of every Muslim to make appropriate

arrangements for his property after his death. As discussed above, a Will executed by Muslim is known as "Wasiyat". The person who executes the Will is called 'legator' or 'testator' and the person in whose favour the Will is made is known as 'legatee' or testartrix'. There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a Muslim can make a Will in favour of anyone, only to the extent of one third of his total property. If the will is made beyond one third of the property, the consent of legal heir is mandatory no matter in whose favour the Will is made. Thus, the two restrictions are in respect of the person in whose favour the bequest is made and as to the extent to which he can dispose of his

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property. In the case of Mohd. Yusuf Vs. Board of Revenue, U.P. All. (AIR 2005 199), in this case, Hon'ble High Court held that "the testamentary capacity of a Muslim is limited in two counts. He does not possess and unlimited power for making dispossession by Will. There are two restriction. One is in respect of person and second is as to the extent to which he can dispossess his property. In the case of Anarali Tarafdar Vs. Omar Ali & Ors. (AIR 1951 Calcutta 7). Hon'ble Supreme Court held that Mohhamedan law cannot by Will dispose of more than one third of his estate unless such bequest in excess of the legal third is consented to by the heirs after the death of the testator. Though creation of a life estate is not repugnant to the Mohhamedan law, the inter position of life estate under a testamentary bequest must be deemed to be testamentary disposition of the entire property to the exclusion of the legal heirs. In such cases, also it has to be proved that the heirs has consented to such bequest. Now in the present case, the parent of plaintiff have made a Will to bequest the suit property to the defendant without any consent of the plaintiff. Plaintiff who is only the heir is against the principle of Islamic law and accordingly, the trial Court has rightly and correctly appreciated the said issue and also considered the provision of Muslim law in regard to Will "Wasiyat" correctly and have replied the issue in affirmative"

14. According to this Court, the appellant failed to make out

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any case to interfere with the finding, neatly addressed by the Ld. Court below in relation to the power of testator to bequeath his property by way of will under the principles of Muslim Law. No other provision of Muslim Law could be pressed into service by the Ld. Advocate appearing for the Appellant. This Court is in complete agreement with legal and sound findings recorded by the Ld. Court below.

15. The contention that the Plaintiff has consented to mutate the name of the Defendant in Revenue Record by executing writing at Exh. 111, creates estoppel against the Plaintiff, in seeking relief in the Suit is concerned. Examining the contents thereof in Exh. 111 indicate that the Plaintiff relinquished her right, title and interest in the Suit property in favour of the Defendant. The contents and recital of the Exh 111 indicates that though it is in the nomenclature of consent letter or under the title of consent letter, the contents thereof indicate that it is conveyance deed whereby the Plaintiff handed over the right, title and interest of the said property in favour of the Defendant. Admittedly, this Exh. 111 is executed on Stamp duty of Rs. 50/- and has been notarized. Section 17(b) of the Registration Act emerges that such document require compulsory registration Section 17(b) of the Registration Act reads as under:-

"17. Documents of which registration is compulsory.—

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force,namely:—

(a) XXX

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish,

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whether in present or in future, any right, title or interest, whether vested or contingent,of the value of one hundred rupees and upwards, to or in immovable property;

(c) XXX

(d) XXX

(e) XXX"

Therefore, in the absence of registration, which is compulsory or mandatory under Section 17(b), any document that purports to create a right in favour of the party cannot be considered as admissible evidence in law.

16. Section 5 of the Transfer of Property Act, 1982 defines the Transfer of Property which reads as under:-

"5. Transfer of property" defined.— In the following sections "transfer of property"

means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and "to transfer property" is to perform such act. In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."

In the aforesaid circumstances, since, by way of Exh. 111, the Appellant-Defendant claims transfer of property, it requires compulsory registration under the Registration Act, and therefore, document at Exh. 111 cannot be accepted, entertained, or admitted into evidence, nor would it create an estoppel against the Plaintiff.

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17. At this juncture, let me refer to Section 100 of the Civil Procedure Code, to understand ambit and scope of second appeal, reads as under:

"100. Second appeal (1)[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.

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

(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 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.;"

18. The Hon'ble Apex Court, in case of Nazir Mohamed Vs. J.Kamala and others, (2020) 19 SCC 57, held as under:-

"33. The principles relating to Section 100 CPC relevant for this case may be summarised thus :

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the

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terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

19. The High Court in order to admit second appeal is required to be satisfied that substantial questions of law is involved in the case and having so satisfied has to formulate

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that question. Existence of a substantial question of law is sine-qua-non for the exercise of jurisdiction under the provisions of section 100 of the Code. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. [See: Union of India v. Ibrahim Uddin, (2012) 8 SCC 148].

20. In Govindaraja v. Mariamman, AIR 2005 SC 1008, the Hon'ble Apex Court held that the scope of exercise of the jurisdiction by the High Court in second appeal under section 100 is limited to the substantial question of law. 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 of the party before the Court.

Recently, the Hon'ble Apex Court in case of Gurbachan Singh (Dead) Through Lrs Versus Gurcharan Singh (Dead) Through Lrs And Others, 2023 (20) SCC 104, in para 7, 14 and 15 held as under:-

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section

100.

14. The principles of law cited herein may be undoubtedly good law, but, however, in the

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considered view of this court, they do not hold in the case put forward by the Appellant. A perusal of the witness statements of DW-3 as duly recorded by the High Court, (the court also relies on the cross examination portions of DW-4 although the same do not form part of the record before this court.) shows that father of the Appellant had indeed partitioned the property during his lifetime. In such situation selling a part of his share in an undivided property, is a question that does not arise. Reliance on Shyam Sunder (supra) does not support the case of the Appellant as there is nothing on record to reflect any effort having been made by him to substitute himself in place of the Respondents in buying the 4 marlas of land from Faqir Singh in order to keep a stranger, namely Gurcharan Singh from entering into family- owned property. Had the Appellant made any such effort and the same would be reflected from record, then it could have been argued that he has a right to exclude the Respondents.

15. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone."

21. Applying the aforesaid principles to the present appeal, no substantial question of law arises in the second Appeal; hence, the second appeal stands dismissed at the admission stage in limine. Civil Application does not survive and stands disposed of accordingly.

(J. C. DOSHI,J)

MMP

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