C.Doddanarayana Reddy(D) By Lrs. vs C.Jayarama Reddy (Dead) By Lr. on 14 February, 2020


Supreme Court of India

C.Doddanarayana Reddy(D) By Lrs. vs C.Jayarama Reddy (Dead) By Lr. on 14 February, 2020

Author: 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

1
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.

2

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

3
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

4
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

                                                                               5

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

6
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

9
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].)”

10

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

12
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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