U.R. VIRUPAKSHAIAH versus SARVAMMA & ANR.

Citation: [2008] 17 S.C.R. 877 · Decided: 17-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 17 S.C.R. 877 
U.R. VIRUPAKSHAIAH 
A 
v. 
SARVAMMA & ANR. 
(Civil Appeal No. 7346 of 2008) 
DECEMBER 17, 2008 
B 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
CODE OF CIVIL PROCEDURE, 1908: 
s. 100 -
Second appeal -
High Court formulating c 
additional substantial question of law while dictating judgment 
in open court - Propriety of - Held: Before such a substantial 
question of law could be formulated, parties should have been 
put to notice and given an opportunity (o meet the same -
High Court did not at all deal with the substantial questions 
D 
of law formulated at the time of admission of the second 
appeal - Judgment of High Court set aside and matter 
remitted to it for consideration afresh - Hindu Law - Existence 
of joint family - Presumption. 
In the instant appeal, filed by the plaintiff against the 
E 
judgment of the High Court passed in a second appeal 
arising out of a partition suit, the question for 
consideration before the Court was: whether the High 
Court, in exercise of its jurisdiction u/s 100 CPC could, 
F 
while dictating the judgment, frame an additional question 
. 
-""' 
of law and answer the same without even referring to the 
questions of law formulated at the time of admission of 
. . the second appeal? 
Allowing the appeal, the Court 
G 
HELD: 1.1. In view of the Code of Civil Procedure 
(Amendment) Act, 1976, it is now essential for the High 
Court to formulate a substantial question of law. Although 
877 
H 
878 
SUPREME COURT REPORTS 
[2008] 17 S.C.R. 
A the High Court has requisite jurisdiction to formulate a 
substantial question of law at a subsequent stage which 
~ 
was not formulated at the time of admission of the second 
" 
appeal, but the requirerrients laid down in the proviso 
appended to s.100 of the Code were required to be met. 
B The High Court formul"t~d the additional substantial 
question of law while djctating the judgment in open 
court and did not record any reason therefor. Before such 
a substantial question of law could be formulated, the 
-
r 
c 
parties shouldhave been put to notice. They should have 
been given an opportunity to meet the same. The prayer 
'---,,_ 
of the appellant to grant some time to deal with the said 
question w~s declined: The High Court failed to take into 
consideration the fact that ~Y framing the additional 
D substantial question of law, a .new case is sought to be 
made out. (Para 12 and 13] (886-B-C] 
2.1. The High Court proceeded on the presumption 
that the plaintiff and the defendants belong to the fourth 
generation of the common ancestor. In holding so, the 
E High Court wrongly included the propositors as the first 
generation. The plaintiff and the defendants were the third 
generation of the propositors. It is well settled that the 
... 
presumption in reg~rd to existence of joint family gets 
F weaker and weaker from descendant to descendant and 
such weak presumption can be rebutted by adduction of 
slight evidence of separate possession of the properties 
~~-
in which even the burden would shift to the plaintiff to 
prove that the family was a joint family. But it is evident 
G that no such contention was raised. No substantial 
question of law in this behalf was framed. [Paras 11 ;15 
and 16] (885-C; 886.-F; 888 .. E] 
Nune Prasad &, Ors. v. Nune Ramakrishna 2008 (10) 
~ ... 
SCALE 523; Panchugopal Baiua & Ors. v. Umesh Chandra 
H 
U.R. VIRUPAKSHAIAH v. SARVAMMA & ANR. 
879 
.. 
Goswami & Ors. (1997) 4 SCC 713; Kshitish Chandra Purkait 
A 
·~ 
v. Santosh Kumar Purkait & Ors. (1997) 5 SCC 438; Bhagwan 
..., 
Dayal (since deceased) and thereafter his heirs and legal 
representatives Bansgopa/ Dubey & Anr. V. Mst. Reoti Devi 
(deceased) and after her death, Mst. Dayavati, her daughter 
AIR 1962 SC 287 and Bhagwati Prasad v. Shri Chandramaul 
B 
(1966) 2 SCR 286, referred to. 
-
Hero· Vinoth (Minor) v. Sheshammal (2006) 5 SCC 545, 
~ held inapplicable. 
2.2. The High Court's jurisdiction to interfere with a c 
finding of fact may not be limited in a case of this nature 
where-the finding of fact had been arrived at upon taking 
into consideration inadmissible evidence and based on 
presumptions which could not have been raised. The 
premise on which, therefore, the High Court reversed the 
D 
... 
judgment of the courts below was non-existent. [Para 11 
and 16] [885-C; 887-H] 
Makhan Singh (Dead) By Lrs. V. Ku/want Singh (2007) 
10 sec 602, distinguished. 
E 
Mui/a 's Hindu Law (17th Edn) Article 212(2), 213 -
.. 
refe

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