LexNARENDRA GOPAL VIDYARTHI versus RAJAT VIDYARTHI
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[2008) 16 S.C.R. 961 ,_1 NARENDRA GOPAL VIDYARTHI A v. RAJAT VIDYARTHI (Civil Appeal No. 7010 of 2008) DECEMBER 02, 2008 B [S.B. SINHA AND CYRIAC JOSEPH, JJ] f Indian Succession Act, 1925 - ss. 74, 81 and 82 - Will - Interpretation of - Held: Will is to be read as a whole - , Intention of testator must be asserted from the words used and c the surrounding circumstances - On -facts, testator executed Will and within one month purchased immovable property from the amount set apart for the benefit of his widowed daughter in law and her son - Order of High Court that by way of Will only limited interest bequeathed in favour of D beneficiary and his mother, not sustainable - From the Will 1 it can only be concluded that amount was set apart only for benefit of widow and her son - It might have been invested in > immoveable property but only thereby they could not have been deprived of the amount - Thus, title to said property , E vested in the son - Though use of word 'wakf' was not appropriate but it only shows that testator intended to divest himself of the said property. Words and Phrases: Wakf - Meaning of - Held Is taking F out of one's ownership and passing it on to God's ownership dedicating its usufruct-without regard to indigence or affluence, perpetually and with the intention of obtaining Divine pleasure ..... It is for persons and individuals, or for institutions or mosques and graveyards, or for other charitable purposes - Wakf is neither gift nor trust. G Code of Civil Procedure, 1908 - s. 100 - Second appeal - Maintainability of - Held: Can be entertained if substantial question of law arises for its consideration and not otherwise ,_ 961 H 962 SUPREME COURT REPORTS [2008] 16 S.C.R. A - Finding of fact arrived at by first appellate court is ordinarily final - Finding of fact may give rise to a substantial question of law when the same are based on no evidence or is otherwise perverse or that correct legal principle§ were not applied - On facts, question formulated by High <;;ourt B whether the property in dispute is a Joint Hindu Family property, per se, not a sqbst~ntial question of law. BS executed a Will in year 1965. He had five sons. HS, father of the appellant was the eldest son and RS, father of the respondent, is the youngest son. BS died C in 1973. Within a month from the date of the execution of the said Will, an immovable property was purchased for a sum of Rs.32,0001- from the. amount set apart for the benefit of the appellant and his mother C. Respondent filed suit for declaration and permanent injunction against D the appellant alleging that he had been making attempts to dispose of the suit property belonging to the joint family. Appellant contended that the said prqperty was bequeathed to his mother, th~~, the respondent dld not have any right over it. Trial court dismissed the suit E despite finding that the suit property was a joint family property. First appellate court reversed the finding that the suit property was a joint family property. Respondent filed second appeal. Two substantial questions of law were formulated that whether after dismissal of suit, F defendant has right to file appeal and whether the property in dispute is Joint Hindu Family Property. First question was answered in favour of appellant. With regard to second question, High Court held that the same was a joint family property. Hence the present G appeal. Allowing the appeal, the Court HELD: 1.1. A finding of fact arrived at by the first appellate court is ordinarily final. Its correctness can be H questioned if, inter aila, the same was based upon no NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI 963 .... evidence or is otherwise perverse or that correct legal A ~ principles were not applied. In terms of Section 100 CPC, the High Court can entertain a second appeal if a substantial question of law arises for its consideration and not otherwise. A finding of fact may give rise to a substantial question of law, inter alia, in the event the B findings are based on no evidence and/or while arriving ~ at the said finding, relevant admissible evidences have not been taken into consideration or inadmissible evidences have been taken into consideration. [Paras 13, 14 and 15] [971-F-H; 972-A-B] c 1.2. The question formulated, whether the property • in dispute is a Joint. Hindu Family property, per se, is not a substantial que
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