MANICKA POOSALI (DEAD) BY LRS. AND ORS. versus ANJALI AMMAL AND ANR.

Citation: [2005] 2 S.C.R. 1027 · Decided: 17-03-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

MANICKA POOSALI (DEAD) BY LRS. AND ORS. 
A 
v. 
ANJALI AMMAL AND ANR. 
MARCH 17, 2005 
(ASHOK BHAN AND A.K. MATHUR, JJ.] 
B 
Code of Civil Procedure, 1908-Section 100: 
Concurrent findings of fact recorded by courts below factually correct-
Second appeal-Reappreciation of evidence-Scope-Held : Reversal of the C 
findings by High Court after re-appreciation of evidence, was in excess of its 
jurisdiction. 
Second appeal-Scope of hearing-Held : Is limited by "substantial 
question of law" formulated at the time of admission or at the time of hearing D 
of the second appeal. 
Through a registered partition deed dated 19-07-1970 between the 
first appellant's father and his brothers, certain properties were allotted 
to first appellant's father out of their joint family properties. He executed 
a settlement deed dated 22-03-1977 and a registered Will dated 23-03-1977 E 
in favour of his surviving son, the first appellant. Consequent to the death 
of first appellant's father in 1978, respondents i.e. the widow and daughter 
of his pre-deceased son, filed suit against the appellants for partition and 
separate possession of their share in respect of Plaint A and Plaint B 
Schedule items. 
Trial Court as well as the Lower Appellate Court denied preliminary 
decree of partition and separate possession to the respondents with respect 
to certain suit properties (Plaint A Schedule item nos. 22 to 26 and 29), 
holding them to be self-acquired properties of first appellant's father and 
F 
not joint family properties available for partition. Both the Courts also d 
recorded a finding that the settlement deed dated 22-3-1977 and Will dated 
23-3-1977 executed by first appellant's father were valid and genuine and 
the respondents were not entitled to any share in properties.. included in 
both the deeds. 
1027 
H 
1028 
SUPREME COURT REPORTS 
[2005] 2 S.C.R. 
A 
High Court, in second appeal, however held that item nos. 22 to 26 
and 29 of Plaint A Schedule properties were not self-acquired properties 
but purchased out of joint family nucleus and accordingly granted 
preliminary decree of partition. It further held that the settlement deed 
dated 22-3-1977 was void as the items mentioned therein formed 
B coparcenary property and no coparcener, like the first appellant's fatht:r 
could dispose of his undivided interest by way of gift. The High Court 
found the will dated 23-03-1977 to be duly executed and proved but 
observed that the same was not genuine and valid as it was surrounded 
by numerous suspicious circumstances. Hence the present appeal. 
C 
The present appeal has been filed against the findings of High Court 
with respect to the Settlement deed, the Will and the Plaint A Schedule 
_......,. 
item nos. 22 to 26 and 29. 
Allowing the appeal, the Court 
D 
HELD : 1. Apart from the fact that the High Court on re-
appreciation of evidence could not set aside the findings recorded by the 
courts below on facts, the fact that the properties at item nos. 22 to 26 
and 29 were the self acquired properties is demonstrated by the fact that 
these properties were purchased by first appellant's father between 29th 
April, 1953 to 19th January, 1956. During this period he was a member 
E of the Joint Hindu Family consisting of himself and his two brothers. The 
partition between him and his brothers took place in the year 1970. Had 
these properties been purchased with the funds of the Hindu Joint Family 
property, then the same would have formed part of the Joint Hindu Family 
properties consisting of first appellant's father and his brothers. In the 
F registered partition deed dated 19th July, 1970 these properties were 
treated to be the self acquired properties and were not subjected to the 
partition. First appellant's father was allotted property item nos. 11 to 
21 and 28 only. This clearly demonstrates that the property item nos. 22 
to 26 and 29 were his self acquired properties and were treated by him as 
such throughout. Being the self acquired property, he had the absolute 
G right to dispose them of in any manner he liked i.e. by way of sale;gift or 
will. The findings recorded by the High Court that these properties were 
acquired with the funds of Joint Hindu Family is factually incorrect and 
the finding recorded by the courts below on facts were correct and the 
High Court has clearly erred in reversing the same. The High Court has 
H overstepped in the exercise of its jurisdiction in reversing the concurrent 
..

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