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Supreme Court of India
C.Doddanarayana Reddy(D) By Lrs. vs C.Jayarama Reddy (Dead) By Lr. on 14 February, 2020Author: L. Nageswara Rao
Bench: L. Nageswara Rao, Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2165 OF 2009
C. DODDANARAYANA REDDY (DEAD) BY LRS. …..APPELLANT(S)
& ORS.
VERSUS
C. JAYARAMA REDDY (DEAD) BY LRS. & ORS. …..RESPONDENT(S)
JUDGMENT
HEMANT GUPTA, J.
1. The defendants are in appeal aggrieved against an order passed by
the High Court of Karnataka on 14 th June, 2005 whereby the appeal
filed by the plaintiff – C. Jayarama Reddy was allowed by setting
aside the concurrent findings of facts recorded by two courts
below. The High Court answered the following substantial question
of law:
“Whether the judgment and decree passed by the
Courts below suffer from illegality on account of
improper consideration of Ex.P1, i.e., school leaving
certificate?”
2. The plaintiff filed a suit for partition and separate possession of
1/4th share in the Suit schedule property between himself and his
three brothers who are defendant Nos. 1, 2 and 3. Defendant Nos.
4 to 17 are the persons who have purchased the property from the
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defendant Nos. 1 to 3, the brothers. The plaintiff claimed that he
was minor at the time of death of his father in the year 1963 and
that he continued as a member of the joint Hindu family in joint
possession and enjoyment of the property of joint Hindu family. The
plaintiff asserted that his signatures were obtained on a few
documents and that he was not aware of the contents of the same
nor did he execute any document thereof and understood what
they were. Para 6 of the plaint reads thus:
“6. The plaintiff was kept in the dark about the family
affairs and implicitly obeyed the dictates of the other
defendants and did whatever he was asked to do. In
fact, his signatures were taken on few documents and
the plaintiff is not aware of the contents nor did he
execute any document thereof or understands what they
were.”
3. In the written statement filed, it was asserted that the plaintiff and
defendant Nos. 1 to 3 and their father were members of joint Hindu
family till 15th June, 1963. The plaintiff demanded and wished to
separate himself from the joint Hindu family and executed a
release deed on 15th June, 1963 and severed all the connections
from the joint Hindu family when he received consideration of
Rs.5,000/- for his share and relinquished all his rights in the family.
The plaintiff went away from the family after execution of the
release deed and lived at Kempapura village since 1963 in his
father-in-law’s house. It was denied that the plaintiff was minor at
the time of death of his father. It was further pleaded that he
married one Mamjamma d/o Nanjundappa of Kempapura on 29 th
June, 1964.
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4. On the basis of respective pleadings of the parties, the trial court
framed as many as 16 issues. However, the relevant issues are
Issue Nos. 1 and 2 at this stage, which read as under:
“1. Whether the plaintiff was a minor in 1963?
2. Whether the plaintiff separated from the joint family
and executed a release deed dated 15.06.1963? If so, is
the same valid and is the plaintiff entitled to a share?”
5. The plaintiff in order to prove that he was minor produced School
Leaving Certificate Ex. P/1 and also examined his brother PW.2 C.
Ramaswamy Reddy. The brother did not depose about the age of
the plaintiff at the time of death of his father. The plaintiff has not
produced any official from the school to prove that such certificate
was from the record of the school nor did he examine Head Master
who has issued such certificate. The plaintiff has also not
examined his mother who was available at the time when the
evidence of the plaintiff was being recorded.
6. The learned trial court on Issue No. 1 found that the registered
release deed (Ex.D/1) dated 15th June, 1963 mentions the age of
the plaintiff as about 22 years and subsequent to the execution of
the release deed the plaintiff married Nanjamma on 29 th June,
1964. The registered marriage deed Ex D-2, produced by the
defendants, also proves that the age of the plaintiff was 24 years.
The trial court did not rely on the date of birth of the plaintiff
mentioned in the School Leaving Certificate (Ex.P/1) as the same
was not put by the Head Master of the School and the plaintiff did
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not examine the Head Master of the School to prove the contents
of the School Leaving Certificate. Thus, the learned trial court held
that the plaintiff was not a minor at the time of execution of
release deed in favour of his brothers and his father.
7. Learned trial court further held that the plaintiff has stated that
some of his signatures were taken by his father on few documents
and he was not aware of the contents of those documents. The
defendants have proved the execution of the release deed by the
plaintiff. The plaintiff admitted that he executed a release deed on
15th June, 1963 and has been residing with his father-in-law in
Kempapura because a dispute arose between his father and
brothers and himself. He admitted that his father died on 30 th June,
1963 and that his brothers are residing separately since 1964. The
trial court further held that the plaintiff has not pleaded any fraud
or coercion in respect of release deed, thus, the Court came to the
conclusion that the release deed is valid and the plaintiff is not
entitled to any share in the suit schedule properties.
8. Aggrieved, plaintiff filed appeal before the learned First Appellate
Court. The learned First Appellate Court examined the questions
as to whether on the date of execution of the release deed, the
plaintiff was a major or not and whether the release deed obtained
by undue influence or coercion etc. The Court held that the
plaintiff had not pleaded at any time that the release deed was
obtained by fraud or coercion or that he had not received any
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consideration thereunder. After discussing the statements of
witnesses and the documents produced by the parties, the First
Appellate Court held that plaintiff was not a minor at the time of
execution of release deed and, thus, dismissed the appeal of the
plaintiff and that the order of dismissal of suit of the learned trial
court was upheld.
9. In second appeal, the substantial question framed by the High
Court was whether the judgment and decree passed by the courts
below suffers from illegality on account of improper consideration
of Ex.P/1, i.e., School Leaving Certificate. The High Court returned
a finding that Ex.P/1 is a transfer certificate and, thus, the plaintiff
was minor and such certificate is admissible as proof of age under
Section 35 of the Evidence Act. It was held that since the plaintiff
was minor on the date when the release deed was executed on 15 th
June, 1963, therefore, such deed is null and void and incapable for
raising a plea of estoppel. The reliance was placed upon Nawab
Sadiq Ali Khan & Ors. v. Jai Kishori & Ors.1. After returning
such finding, the High Court held that release deed is null and void
and not binding, though the High Court returned finding that the
plaintiff has received a consideration of Rs.5,000/- at that time.
10. Learned counsel for the plaintiff relied upon the judgment of this
Court reported as Wali Singh v. Sohan Singh2 wherein the
relinquishment by one Kirpal Singh as a guardian of Wali Singh was
found to be infructuous in law.
1 AIR 1928 Privy Council 152
2 AIR 1954 SC 263
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11. We do not find any merit in the argument raised by learned
counsel for the plaintiff relying upon judgment in Wali Singh. In
Wali Singh, the plaintiff challenged the mutation said to have
been made during his minority. The argument was that he
inherited property on the date of death of Kirpal Singh but before
his adoption. The High Court dismissed the suit filed by Wali Singh,
interalia, for the reason that it was incumbent upon Wali Singh to
get the transfer set aside within three years of attaining majority
notwithstanding that the parties may have continued in joint
possession. It was on the statement of Kirpal Singh, his adopted
father, that the mutation was sanctioned that Wali Singh does not
have any concern with the property of his natural father. It was
found that the statement made by Kirpal Singh was not based
upon any transfer or relinquishment as the guardian of Wali Singh
whereas the release by minor Wali Singh was infructuous in law.
Therefore, the suit cannot be said to be barred by virtue of Article
44 of the Limitation Act. The said judgment has no applicability to
the facts of the present case as it does not deal with the question
of admissibility of a School Leaving Certificate which would
determine the date of birth.
12. The argument of learned counsel for the plaintiff-respondent is that
transfer certificate is a public document which was prepared on the
basis of a statement made by his father. Such document bears the
signature of his father as well. It is also contended that such
document is prepared in the course of official duty of the staff of
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the Government School, therefore, there is presumption of
correctness in terms of Section 35 of the Indian Evidence Act,
1872. Learned counsel for the plaintiff has also referred to the
judgment of this Court reported as Birad Mal Singhvi v. Anand
Purohit3 wherein, the entry recording the Date of Birth in the
School Register is said to have a probative value. Reference is also
made to a judgment reported as Madan Mohan Singh & Ors. v.
Rajni Kant & Anr.4 to contend that the entry in the School
Register cannot be brushed aside.
13. Learned counsel for the plaintiff also relied upon the judgment of
this Court reported as Madhegowda (Dead) by LRs v.
Ankegowda (Dead) by LRs & Ors.5 that filing of a suit is
sufficient to repudiate the alleged relinquishment deed, which is a
void document.
14. We do not find any merit in the arguments raised. The public
document in terms of Section 74 of the Indian Evidence Act, 1872
includes the documents forming records of official bodies or
tribunals. Section 76 of the said Act gives a right to any person to
demand a copy of a public document on payment of a fee together
with the certificate written at the foot of such copy that it is a true
copy of such document. Certified copies may be produced in proof
of the contents of the public documents or parts of the public
documents of which they purport to be copies. The plaintiff has
produced photocopy of the Certificate (Ex.P/1) on the records of
3 1988 (Supp.) SCC 604
4 (2010) 9 SCC 209
5 (2002) 1 SCC 178
7
this appeal. Such Certificate does not show that it is said to be a
certified copy of a public document as contemplated by Section 76
of the said Act.
15. School Leaving Certificate has been produced by the plaintiff and
said to be signed by his father. The person who has recorded the
date of birth in the School Register or the person who proves the
signature of his father in the School Transfer Certificate has not
been examined. No official from the School nor any person has
proved the signatures of his father on such certificate. Apart from
the self-serving statement, there is no evidence to show that the
entry of the date of birth was made by the official in-charge, which
alone would make it admissible as evidence under Section 35 of
the Indian Evidence Act, 1872. However, the High Court has not
found any other evidence to prove the truthfulness of the
Certificate (Ex.P/1).
16. The reliance of the plaintiff on Madhegowda is again not relevant
to the issues arising in the present case. In the aforesaid case, the
property of admittedly a minor was sold by sister of the minor
purportedly acting as a guardian. There was no dispute about the
age of the seller who was minor. The dispute in the present appeal
revolves around the fact whether the plaintiff was a minor on the
date the release deed was executed. The entire case is based upon
School Transfer Certificate (Ex.P/1) which does not prove the date
of birth, recorded therein, as reliable and trustworthy.
17. In Birad Mal Singhvi, the Date of Birth was sought to be proved
8
by the Principal of the School. Though, the Principal could not
produce the admission form in original or its copy. It was held
therein that the entries contained in the school’s register are
relevant and admissible but have no evidentiary value for the
purpose of proof of date of birth of the candidates. A vital piece of
evidence was missing as no evidence was placed before the court
to show on whose information the date of birth was recorded in the
aforesaid document. It was held as under:
“14. …..No doubt, Exs. 8. 9, 10, 11 and 12 are relevant
and admissible but these documents have no
evidentiary value for purpose of proof of date of birth of
Hukmi Chand and Suraj Prakash Joshi as the vital piece
of evidence is missing, because no evidence was placed
before the court to show on whose information the date
of birth of Hukmi Chand and the date of birth of Suraj
Prakash Joshi were recorded in the aforesaid document.
As already stated neither of the parents of the two
candidates nor any other person having special
knowledge about their date of birth was examined by
the respondent to prove the date of birth as mentioned
in the aforesaid documents. Parents or near relations
having special knowledge are the best persons to
depose about the date of birth of a person. If entry
regarding date of birth in the scholar’s register is made
on the information given by parents or someone having
special knowledge of the fact, the same would have
probative value. The testimony of Anantram Sharma
and Kailash Chandra Taparia merely prove the
documents but the contents of those documents were
not proved. The date of birth mentioned in the scholars’
register has no evidentiary value unless the person who
made the entry or who gave the date of birth is
examined. The entry contained in the admission form or
in the scholar’s register must be shown to be made on
the basis of information given by the parents or a
person having special knowledge about the date of
birth of the person concerned….”
18. In Madan Mohan Singh, this Court held that the entries made in
the official record may be admissible under Section 35 of the
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Indian Evidence Act, 1872 but the Court has a right to examine
their probative value. The authenticity of the entries would
depend on whose information such entries stood recorded. The
Court held as under:
“20. So far as the entries made in the official record by
an official or person authorised in performance of
official duties are concerned, they may be admissible
under Section 35 of the Evidence Act but the court has
a right to examine their probative value. The
authenticity of the entries would depend on whose
information such entries stood recorded and what was
his source of information. The entries in school
register/school leaving certificate require to be proved
in accordance with law and the standard of proof
required in such cases remained the same as in any
other civil or criminal cases.
21. For determining the age of a person, the best
evidence is of his/her parents, if it is supported by
unimpeachable documents. In case the date of birth
depicted in the school register/certificate stands belied
by the unimpeachable evidence of reliable persons and
contemporaneous documents like the date of birth
register of the Municipal Corporation, government
hospital/nursing home, etc., the entry in the school
register is to be discarded. (Vide Brij Mohan
Singh v. Priya Brat Narain Sinha [AIR 1965 SC
282] , Birad Mal Singhvi v. Anand Purohit [1988 Supp
SCC 604 : AIR 1988 SC 1796] , Vishnu v. State of
Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri)
217] and Satpal Singh v. State of Haryana [(2010) 8
SCC 714 : JT (2010) 7 SC 500] .)
22. If a person wants to rely on a particular date of
birth and wants to press a document in service, he has
to prove its authenticity in terms of Section 32(5) or
Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act
by examining the person having special means of
knowledge, authenticity of date, time, etc. mentioned
therein. (Vide Updesh Kumar v. Prithvi Singh [(2001) 2
SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063]
and State of Punjab v. Mohinder Singh [(2005) 3 SCC
702 : AIR 2005 SC 1868].)”
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19. In a judgment reported as Ram Suresh Singh v. Prabhat Singh
& Anr.6, it has been held that entry in the School Register may not
be a public document and, thus, must be proved in accordance
with law. The Court held as under:
“12. The condition laid down in Section 35 of the
Evidence Act for proving an entry pertaining to the age
of a student in a school admission register is to be
considered for the purpose of determining the
relevance thereof. But in this case, the said condition
must be held to have been satisfied. An entry in a
school register may not be a public document and,
thus, must be proved in accordance with law, as has
been held by this Court in Birad Mal Singhvi but in this
case the said entry has been proved.”
20. We find that the High Court gravely erred in law in interfering in
the findings of fact recorded by the First Appellate Court. The
plaintiff has not challenged the release deed dated 15 th June, 1963
in the plaint on the ground that he was minor on the date of
execution nor has he challenged on the ground of fraud, coercion
or undue influence in execution of the said document. He has not
pleaded so as is required to be pleaded in terms of Order VI Rule 4
Code of Civil Procedure, 1908 7. The only pleading raised by the
plaintiff is that he was a minor at the time of death of his father in
1963. He has not disclosed the date of death of his father in the
plaint. The averment in the plaint is that his signatures have been
obtained on certain documents but he does not know the contents
thereof.
21. There is a categorical plea in the written statement that the
6 (2009) 6 SCC 681
7 for short, ‘the Code’
11
release deed was voluntarily executed and he walked away from
the family and stayed in the village of his father-in-law. The fact
that he left village and stayed in the house of his father-in-law is
admitted by him when he appeared as PW-1. The High Court has
also not disputed that a sum of Rs.5,000/- was received by him
when the release deed was executed on 15th June, 1963.
22. The plaintiff has taken benefit of consideration of Rs.5,000/- in
pursuance of the release deed executed on 15 th June, 1963. He
has not challenged such release deed in the suit filed but asserted
to be member of joint Hindu family though as per his own
evidence, he left joint family and started living in the Village of his
father-in-law. Thereafter, on the basis of the release deed, the
other members of the family have transferred some of the property
in favour of the other defendants; therefore, the suit could not
have been decreed when the two registered documents (Ex.D/1
and Ex.D/2) are not disputed by the plaintiff when confronted with
such document in the cross-examination.
23. We find that the onus was on the plaintiff to prove that he was a
minor at the time of execution of release deed. He failed to prove
his date of birth as 8 th April 1946, therefore, his suit is to be
dismissed and was rightly dismissed by the learned trial court and
the First Appellate Court. The High Court in Second Appeal could
not reappreciate the evidence to take a different view that such
document is proved. The illegality on account of alleged improper
consideration does not give rise to a substantial question of law.
24. The plaintiff has admitted the release deed and the marriage deed
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dated 15th June, 1963 and 29th June, 1964 respectively having been
executed by him when confronted with in his cross examination.
Both the documents are registered documents. On the basis of
admission, both courts have returned a finding of fact that the
plaintiff has not been able to prove date of birth as 8 th April, 1946.
We find that the High Court committed a grave error in interfering
in the second appeal by merely taking a different view on the basis
of same evidence on the basis of which both the trial court as well
as First Appellate Court held the plaintiff has failed to prove his
date of birth as 8th April 1946.
25. The question as to whether a substantial question of law arises,
has been a subject matter of interpretation by this Court. In the
judgment reported as Karnataka Board of Wakf v. Anjuman-E-
Ismail Madris-Un-Niswan8, it was held that findings of the fact
could not have been interfered within the second appeal. This
Court held as under:
“12. This Court had repeatedly held that the power of
the High Court to interfere in second appeal under
Section 100 CPC is limited solely to decide a substantial
question of law, if at all the same arises in the case. It
has deprecated the practice of the High Court routinely
interfering in pure findings of fact reached by the courts
below without coming to the conclusion that the said
finding of fact is either perverse or not based on
material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC
392), this Court held:
“It is now well settled that concurrent findings of
fact of trial court and first appellate court cannot be
interfered with by the High Court in exercise of its
8 (1999) 6 SCC 343
13
jurisdiction under Section 100 of Civil Procedure
Code. The Single Judge of the High Court totally
misconceived his jurisdiction in deciding the second
appeal under Section 100 of the Code in the way he
did.”
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC
166), this Court held :
“Interference with the concurrent findings of the
courts below by the High Court under Section 100
CPC must be avoided unless warranted by com-
pelling reasons. In any case, the High Court is not
expected to reappreciate the evidence just to re-
place the findings of the lower courts. … Even as-
suming that another view is possible on a reappreci-
ation of the same evidence, that should not have
been done by the High Court as it cannot be said
that the view taken by the first appellate court was
based on no material.”
15. And again in Secy., Taliparamba Education Soci-
ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484),
this Court held: (SCC p. 486, para 5)
“The High Court was grossly in error in trenching
upon the appreciation of evidence under Section
100 CPC and recording reverse finding of fact which
is impermissible.”
26. In a judgment reported as Kondiba Dagadu Kadam v.
Savitkibai Sopan Gujar & Ors.9, this Court held that from a
given set of circumstances if two inferences are possible then the
one drawn by the lower appellate court is binding on the High
Court. In the said case, the First Appellate Court set aside the
judgment of the trial court. It was held that the High Court can
interfere if the conclusion drawn by the lower court was erroneous
being contrary to mandatory provisions of law applicable or if it is a
settled position on the basis of a pronouncement made by the
9 (1999) 3 SCC 722
14
court or based upon inadmissible evidence or arrived at without
evidence. This Court held as under:
“5. It is not within the domain of the High Court to
investigate the grounds on which findings were arrived
at, by the last court of fact, being the first appellate
court. It is true that the lower appellate court should not
ordinarily reject witnesses accepted by the trial court in
respect of credibility but even where it has rejected the
witnesses accepted by the trial court, the same is no
ground for interference in second appeal when it is
found that the appellate court had given satisfactory
reasons for doing so. In a case where from a given set
of circumstances two inferences are possible, one
drawn by the lower appellate court is binding on the
High Court in second appeal. Adopting any other
approach is not permissible. The High Court cannot
substitute its opinion for the opinion of the first
appellate court unless it is found that the conclusions
drawn by the tower appellate court were erroneous
being contrary to the mandatory provisions of law
applicable of its settled position on the basis of
pronouncements made by the apex Court, or was based
upon in inadmissible evidence or arrived at without
evidence.”
27. In another judgment reported as Santosh Hazari v.
Purushottam Tiwari10, this Court held as under:
“14. A point of law which admits of no two opinions
may be a proposition of law but cannot be a substantial
question of law. To be substantial, a question of law
must be debatable, not previously settled by law of the
land or a binding precedent, and must have a material
bearing on the decision of the case, if answered either
way, in so far as the rights of the parties before it are
concerned. To be a question of law involving in the case
there must be first a foundation for it laid in the
pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts
and it must be necessary to decide that question of law
for a just and proper decision of the case. An entirely
new point raised for the first time before the High Court
is not a question involved in the case unless it goes to
the root of the matter. It will, therefore, depend on the
facts and circumstance of each case whether a question
10 (2001) 3SCC 179
15
of law is a substantial one and involved in the case, or
not; the paramount overall consideration being the
need for striking a judicious balance between the
indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life
of any lis.”
28. Recently in another judgment reported as State of Rajasthan v.
Shiv Dayal11, it was held that a concurrent finding of the fact is
binding, unless it is pointed out that it was recorded de hors the
pleadings or it was based on no evidence or based on misreading
of the material on records and documents. The Court held as
under:
“When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point out that
it is bad in law because it was recorded de hors the
pleadings or it was based on no evidence or it
was based on misreading of material documentary
evidence or it was recorded against any provision of law
and lastly, the decision is one which no Judge acting
judicially could reasonably have reached. (see
observation made by learned Judge Vivian Bose,J. as His
Lordship then was a Judge of the Nagpur High Court in
Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath
Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para
43).”
29. The learned High Court has not satisfied the tests laid down in the
aforesaid judgements. Both the courts, the trial court and the
learned First Appellate Court, have examined the School Leaving
Certificate and returned a finding that the date of birth does not
stand proved from such certificate. May be the High Court could
have taken a different view acting as a trial court but once, two
11 (2019) 8 SCC 637
16
courts have returned a finding which is not based upon any
misreading of material documents, nor is recorded against any
provision of law, and neither can it be said that any judge acting
judicially and reasonably could not have reached such a finding,
then, the High Court cannot be said to have erred. Resultantly, no
substantial question of law arose for consideration before the High
Court.
30. Thus, we find that the High Court erred in law in interfering with
the finding of fact recorded by the trial court as affirmed by the
First Appellate Court. The findings of fact cannot be interfered with
in a second appeal unless, the findings are perverse. The High
Court could not have interfered with the findings of the fact.
31. In view of the aforesaid enunciation of law and the facts of the
present case, we find that the High Court committed grave error in
law in setting aside the concurrent findings of facts recorded by the
First Appellate Court and the Trial Court. Consequently, the appeal
is allowed and the suit is dismissed with no order as to cost.
………………………………………J.
(S. ABDUL NAZEER)
………………………………………J.
(HEMANT GUPTA)
NEW DELHI;
FEBRUARY 14, 2020.
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