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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  102    OF 2013 (Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh ... Appellant

Versus

Paramjit Singh & others      ...Respondents  

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for  

possession of the suit land to the extent of his share  

treating the will  alleged to  have been executed in  

favour of the defendant Nos. 1 to 4 as null and void  

with  the  consequential  prayer  for  restraining  them  

from alienating the suit property in any manner.  It

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was set forth in the plaint that the suit land in the  

hands  of  his  father,  Shiv  Singh,  was  ancestral  

coparcenary and Joint Hindu Family property and he,  

along with his brothers, the defendant Nos. 5 and 6,  

constituted a Joint Hindu Family with the father and  

mother.  It was alleged that the defendant Nos. 1 to  

4,  on  the  basis  of  a  forged  will,  forcibly  took  

possession of the land.  It was set forth that by virtue  

of the will, the plaintiff and the defendant Nos. 5 and  

6,  the co-owners,  have been deprived of  the legal  

rights in the suit land.  It was the case of the plaintiff  

that  the  will  was  not  executed  voluntarily  by  his  

father,  Shiv  Singh,  and  it  was  a  forged  one  and,  

therefore,  no right could flow in favour of the said  

defendants.

3. The  defendant  Nos.  1  to  4  entered  contest  and  

supported the execution of the will on the basis that  

it  was  voluntary  and  without  any  pressure  or  

coercion.   That  apart,  it  was  contended  that  the  

rights of defendant No. 5 had not been affected as a  

registered  gift  was  executed  on  31.3.1980  by  late  

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Shiv Singh.  The claim of the plaintiff  was strongly  

disputed  on  the  ground  that  the  will  had  already  

been worked out since the revenue records had been  

corrected.  The defendant No. 6 resisted the stand of  

the plaintiff contending, inter alia, that the property  

was self-acquired and the execution of the will was  

absolutely voluntary.  The defendant No. 5 filed an  

independent written statement admitting the claim of  

the plaintiff.  It was set forth by him that the suit land  

was  ancestral,  a  Joint  Hindu  Coparcenary  property  

and his father Shiv Singh,  being the Karta,  had no  

right to bequeath the same in favour of defendant  

Nos.  1  to  4  to  the  exclusion  of  the  other  rightful  

owners.  That apart, it was contended that the will  

was vitiated by fraud.  A prayer was made to put him  

in possession of the suit  land after carving out his  

share.   

4. The  learned  trial  Judge  framed  as  many  as  four  

issues.  The plaintiff examined himself as PW-1 and  

tendered  number  of  documents  in  evidence  which  

were marked as Exts.  P-1 to  P-17.   The defendant  

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Nos. 1 to 4 examined number of witnesses and got  

seven  documents  exhibited.   The  defendant  No.5  

supported  the  evidence  led  by  the  plaintiff.   In  

rebuttal, the plaintiff examined the Record Keeper of  

Medical College Rohtak as PW-2 and Dr. A.K. Verma  

as PW-3 and brought on record four forms, Exts. P-18  

to P-19A.  The learned trial Judge, on appreciation of  

the evidence brought on record, came to hold that  

the suit land was a Joint Hindu Family property; that  

defendant  Nos.  1  to  4  had  failed  to  dispel  the  

suspicious circumstances in the execution of the will  

in favour of defendant Nos. 1 to 4 and, hence, the will  

was null and void; that the mutation did not create  

any  impediment  on  the  rights  of  the  plaintiff  and  

other natural heirs of the testator; and that they are  

entitled to get joint possession of the suit land as per  

their  shares  in  accordance with  the  law of  natural  

succession.

5. On  an  appeal  being  preferred  by  the  three  

beneficiaries of the will (as the original defendant No.  

1  had  died),  the  learned  appellate  Judge  came  to  

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hold  that  the  property  held  by  Shiv  Singh,  the  

predecessor-in-interest of the parties to the suit, was  

not ancestral, but self-acquired and, hence, he was  

competent to alienate the same in any manner as he  

liked; that the will dated 6.7.1989, Exh. D-2, in favour  

of original defendant No. 1, his wife who had expired  

by the time the appeal was filed and the defendant  

Nos. 2 to 4, his grandsons, was validly executed and  

that the finding recorded by the learned trial Judge  

on that  score was unsustainable.   Be it  noted,  the  

learned appellate  Judge took  note  of  the  fact  that  

Sarabjit  Singh had challenged the said will  but,  on  

account of settlement with the appellants before the  

appellate court,  had practically withdrawn from the  

litigation.   Being  of  this  view,  he  set  aside  the  

judgment  and  decree  passed  by  the  learned  trial  

Judge and dismissed the suit with costs.

6. The defendant No. 5 preferred R.S.A. No. 85 of 2007  

before  the  High  Court.   The  learned  single  Judge,  

upon hearing the learned counsel for the parties and  

placing  reliance  on  Smt.  Ganga  Bai  v. Vijay  

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Kumar and others1 and  Banarsi  and others  v.  

Ram Phal2,  came to hold that the appeal was not  

maintainable  at  the  instance  of  defendant  No.  5  

under  Section  100  of  the  Code  of  Civil  Procedure,  

1908 (for short “the Code”).   

7. We have heard Mr. Vipin Gogia, learned counsel for  

the appellant, and Mr. K.K. Mohan, learned counsel  

appearing for the respondents.

8. At the very outset, we must state that the High Court  

has accepted the preliminary objections raised by the  

respondents  as  regards  the  maintainability  of  the  

appeal.   While  accepting the preliminary objection,  

the High Court has opined that the plaintiff and the  

defendant  Nos.  1  to  4  and  6  had  accepted  the  

judgment  and  decree;  that  the  defendant  No.  5  

cannot be regarded as an aggrieved party to assail  

the impugned decree invoking the jurisdiction of the  

High  Court  under  Section  100  of  the  Code;  that  

appeal being a creature of the statute, the right to  

appeal  inheres  in  one  and  it  stands  in  a  distinct  1 AIR 1974 SC 1126 2 AIR 2003 SC 1989

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position than that  of  a  suit  and,  hence,  no appeal  

could lie against a mere finding for the simple reason  

that the Code does not provide for such an appeal;  

and that the suit having been dismissed by virtue of  

the  dislodging  of  the  decree  by  the  first  appellate  

court, the regular second appeal could not be filed by  

the defendant No. 5.  Hence, the present appeal by  

the said defendant-appellant.

9. As indicated earlier, to arrive at such a conclusion,  

reliance was placed on the decision in  Smt. Ganga  

Bai  v.  Vijay Kumar and others (supra) wherein a  

distinction was drawn between the inherent right to  

file a suit unless the suit is statutorily barred and the  

limitations in maintaining an appeal.   In  that  case,  

the defendant Nos. 2 and 3 had preferred an appeal  

before  the  High  Court  challenging  the  finding  

recorded by the trial court.  Thereafter, a challenge  

was  made  partly  to  the  preliminary  decree.   This  

Court took note of the fact that the appeal preferred  

by  the  said  defendants  was  directed  originally  not  

against  any  part  of  the  preliminary  decree  but  

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against  a  mere  finding  recorded by  the  trial  court  

that the partition was not genuine.  It was observed  

by this Court that to maintain an appeal, it requires  

authority  of  law.   After  referring to Sections 96(1),  

100, 104(1) and 105 of the Code, the Bench observed  

as follows: -

“17. These provisions show that under the  Code of Civil Procedure, an appeal lies only  as against a decree or as against an order  passed under rules from which an appeal  is expressly allowed by Order 43, Rule 1.  No appeal can lie against a mere finding  for the simple reason that the Code does  not provide for any such appeal.  It must  follow that First Appeal No. 72 of 1959 filed  by  defendants  2  and  3  was  not  maintainable as it was directed against a  mere finding recorded by the trial court.”

10. Thereafter,  the  Court  opined  that  the  High  Court  

mixed up two distinct issues, namely, (i) whether the  

defendants 2 and 3 were competent to file an appeal  

if they were aggrieved by the preliminary decree and  

(ii)  whether  the  appeal  as  filed  by  them  was  

maintainable.  It was opined that if the defendants 2  

and 3 could be said to have been aggrieved by the  

preliminary  decree,  it  was  certainly  competent  for  

them to challenge that decree in appeal, but as they  

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had  not  filed  an  appeal  against  the  preliminary  

decree, the question whether they were aggrieved by  

that decree and could file an appeal therefrom was  

irrelevant.   The  Bench  held  that  the  appeal  was  

directed against the finding given by the trial court  

which  was  against  them,  hence,  it  was  not  

maintainable.  Be it noted, this Court also addressed  

with regard to the issue whether defendant Nos.  2  

and 3 were aggrieved by the preliminary decree and  

opined that the appeal was against a mere finding  

and  the  preliminary  decree,  in  fact,  remained  

unchallenged for a long period.

11. Another aspect which was addressed by the Bench  

was  whether  the  finding  would  operate  as  res  

judicata  in  the subsequent  proceeding.   This  Court  

observed that the finding recorded by the trial court  

that the partition was a colourable transaction was  

unnecessary for the decision of the suit because even  

if  the  court  were  to  find  that  the  partition  was  

genuine,  the mortgage would only have bound the  

interest  of  the  father  as  the  debt  was  not  of  a  

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character  which,  under  the  Hindu Law,  would  bind  

the  interest  of  the  sons.   That  apart,  the  matter  

relating  to  the  partition  being  not  directly  and  

substantially in issue in the suit, the finding that the  

partition was sham could not operate as res judicata  

so as to preclude a party aggrieved by the finding  

from agitating the question covered by the finding in  

any other proceeding.

12. On a keen scrutiny of the facts of the aforesaid case  

and the dictum laid down therein, in our considered  

opinion, it does not really apply to the case at hand,  

regard being had to the obtaining factual matrix and  

further,  the  decision  was  rendered  before  the  

amendment was brought into the Code prior to 1976.  

Therefore, we have no hesitation in saying that the  

High Court has fallen into error in placing reliance on  

the said pronouncement.

13. Presently, it is apt to note that Sections 96 and 100  

of the Code make provisions for preferring an appeal  

from  any  original  appeal  or  from  a  decree  in  an  

appeal respectively.  The aforesaid provisions do not  

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enumerate the categories of persons who can file an  

appeal.   If  a  judgment  and  decree  prejudicially  

affects  a  person,  needless  to  emphasize,  he  can  

prefer an appeal.  In this context,  a passage from  

Smt.  Jatan  Kanwar  Golcha  v.  M/s.  Golcha  

Properties Private Ltd.3 is worth noting: -

“It is well settled that a person who is not a  party to the suit may prefer an appeal with  the leave of the appellate Court and such  leave  should  be  granted  if  he  would  be  prejudicially affected by the judgment.”

14. In State of Punjab v. Amar Singh and another4,  

Sarkaria, J., while dealing with the maintainability of  

an appeal by a person who is not a party to a decree  

or order, has stated thus: -

“84. Firstly there is a catena of authorities  which,  following  the  doctrine  of  Lindley,  L.J., in re Securities Insurance Co., (1894) 2  Ch  410  have  laid  down  the  rule  that  a  person who is not a party to a decree or  order  may  with  the  leave  of  the  Court,  prefer an appeal from such decree or order  if  he  is  either  bound  by  the  order  or  is  aggrieved by it or is prejudicially affected  by it.  As a rule, leave to appeal will not be  refused to a person who might have been  made ex nominee a party – see Province of  Bombay  v.  W.I.  Automobile  Association,  

3 AIR 1971 SC 374 4 AIR 1974 SC 994

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AIR 1949 Bom 141; Heera Singh v. Veerka,  AIR  1958  Raj  181  and  Shivaraya  v.  Siddamma, AIR 1963 Mys 127;  Executive  Officer  v.  Raghavan  Pillai,  AIR  1961  Ker  114.   In  re  B,  an  Infant  (1958)  QB  12;  Govinda  Menon  v.  Madhavan  Nair,  AIR  1964 Ker 235.”

15. In Baldev Singh v. Surinder Mohan Sharma and  

others5, a three Judge-Bench opined that an appeal  

under Section 96 of the Code would be maintainable  

only at the instance of a person aggrieved by and  

dissatisfied  with  the  judgment  and decree.   In  the  

said case, while dealing with the concept of ‘person  

aggrieved’, the Bench observed thus:-

“A person aggrieved to file an appeal must  be one whose right is affected by reason or  the  judgment  and  decree  sought  to  be  impugned.   It  is  not  the  contention  of  Respondent  1  that  in  the  event  the  said  judgment and decree is allowed to stand,  the same will cause any personal injury to  him or shall affect his interest otherwise.”

16. Be it noted, in the said case, the challenge in appeal  

was to the dissolution of marriage of the appellant  

therein and his first wife which, this Court held, would  

have no repercussion on the property in the suit and,  

therefore,  the  High  Court  was  not  justified  in  

5 (2003) 1 SCC 34

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disposing  of  the  civil  revision  with  the  observation  

that the revisionist could prefer an appeal.

17. In  Sahadu  Gangaram  Bhagade  v.  Special  

Deputy Collector, Ahmednagar and another6, it  

was observed that the right given to a respondent in  

an appeal is to challenge the order under appeal to  

the  extent  he  is  aggrieved  by  that  order.   The  

memorandum of cross-objection is  but one form of  

appeal.  It takes the place of a cross appeal.  In the  

said  decision,  emphasis  was  laid  on  the  term  

‘decree’.

18. After the 1976 amendment of Order 41 Rule 22, the  

insertion made in sub-rule (1) makes it permissible to  

file  a  cross-objection  against  a  finding.   The  

difference is basically that a respondent may defend  

himself  without  taking  recourse  to  file  a  cross-

objection  to  the  extent  the  decree  stands  in  his  

favour,  but  if  he  intends  to  assail  any  part  of  the  

decree, it is obligatory on his part to file the cross-

objection.   In  Banarsi  and Others  v.  Ram Phal  

6 (1970) 1 SCC 685

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(supra),  it  has been observed that the amendment  

inserted in 1976 is clarificatory and three situations  

have been adverted to therein.  Category No. 1 deals  

with the impugned decree which is partly in favour of  

the appellant and partly in favour of the respondent.  

Dealing  with  such  a  situation,  the  Bench observed  

that in such a case, it is necessary for the respondent  

to file an appeal or take cross-objection against that  

part of the decree which is against him if he seeks to  

get rid of the same though he is entitled to support  

that part of the decree which is in his favour without  

taking any cross-objection.  In respect of two other  

categories which deal with a decree entirely in favour  

of the respondent though an issue had been decided  

against  him  or  a  decree  entirely  in  favour  of  the  

respondent where all the issues had been answered  

in his favour but there is a finding in the judgment  

which  goes  against  him,  in  the  pre-amendment  

stage,  he could not take any cross-objection as he  

was not a person aggrieved by the decree.  But post-

amendment, read in the light of explanation to sub-

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rule  (1),  though  it  is  still  not  necessary  for  the  

respondent  to  take  any  cross-objection  laying  

challenge  to  any  finding  adverse  to  him  as  the  

decree is entirely in his favour, yet he may support  

the decree without cross-objection.  It gives him the  

right  to  take  cross-objection  to  a  finding  recorded  

against him either while answering an issue or while  

dealing with an issue.  It is apt to note that after the  

amendment  in  the  Code,  if  the  appeal  stands  

withdrawn  or  dismissed  for  default,  the  cross-

objection taken to a finding by the respondent would  

still be adjudicated upon on merits which remedy was  

not  available  to  the  respondent  under  the  

unamended Code.

19. At  this  juncture,  we  may  usefully  reproduce  a  

passage from Banarsi and others (supra) wherein it  

has been stated thus: -

“Sections 96 and 100 CPC make provision  for an appeal being preferred from every  original  decree  or  from  every  decree  passed in appeal respectively; none of the  provisions enumerates the person who can  file an appeal.  However, it is settled by a  long catena of decisions that to be entitled  

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to file an appeal the person must be one  aggrieved by the decree.  Unless a person  is prejudicially or adversely affected by the  decree he is not entitled to file an appeal.  See Phoolchand v. Gopal Lal7, Jatan Kumar  Golcha v. Golcha Properties (P) Ltd. (supra)  and Ganga Bai v. Vijay Kumar (supra).)  No  appeal  lies  against  a  mere  finding.   It  is  significant  to  note  that  both  Sections  96  and 100 CPC provide for an appeal against  decree and not against judgment.”

20. Though  the  High  Court  has  referred  to  the  said  

pronouncement,  yet  it  has  not  applied  the  ratio  

correctly to the facts.  This Court has clearly stated  

that if a person is prejudicially or adversely affected  

by the decree,  he can maintain an appeal.   In the  

present case, as we find, the plaintiff claiming to be a  

co-sharer filed the suit and challenged the will.  The  

defendant  No.  5,  the  brother  of  the  plaintiff,  

supported his case.  In an appeal at the instance of  

the defendant Nos. 1 to 4, the judgment and decree  

was  overturned.   The  plaintiff  entered  into  a  

settlement with the contesting defendants who had  

preferred  the  appeal.   Such  a  decree,  we  are  

disposed to think, prejudicially affects the defendant  

No.  5  and,  therefore,  he  could  have  preferred  an  

7 AIR 1967 SC 1470

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appeal.   It  is  worthy  to  note  that  the  grievance  

pertained to the nature and character of the property  

and the trial court had decreed the suit.   He stood  

benefited by such a decree.  The same having been  

unsettled, the benefit accrued in his favour became  

extinct.  It needs no special emphasis to state that he  

had  suffered  a  legal  injury  by  virtue  of  the  over  

turning  of  the  decree.   His  legal  right  has  been  

affected.  In this context, we may refer to a recent  

pronouncement in Ayaaubkhan Noorkhan Pathan  

v. The State of Maharashtra & ors.8 wherein this  

Court has held thus: -

“A  “legal  right”,  means  an  entitlement  arising out of legal rules.  Thus, it may be  defined  as  an  advantage,  or  a  benefit  conferred upon a person by the rule of law.  The expression,  “person  aggrieved”  does  not  include a  person who suffers  from a  psychological  or  an  imaginary  injury;  a  person  aggrieved  must  therefore,  necessarily be one, whose right or interest  has  been  adversely  affected  or  jeopardized. (Vide: Shanti Kumar R. Chanji   v.  Home Insurance Co.  of  New York,  AIR  1974 SC 1719; and  State of Rajasthan &  Ors. v. Union of India & ors.,  AIR 1977 SC  1361).”

8 2012 (11) SCALE 39

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21. Though  the  said  judgment  was  delivered  in  a  

different context, yet it is applicable to the obtaining  

factual matrix regard being had to the conception of  

legal injury.  Thus, indubitably, the present appellant  

was  a  person  aggrieved  and  was  prejudicially  

affected by the decree and, hence, the appeal could  

not  have  been  thrown  overboard  treating  as  not  

maintainable.

22. In view of the aforesaid premised reasons, we allow  

the appeal, set aside the judgment of the High Court,  

treat  the  second  appeal  preferred  by  the  present  

appellant  to  be  maintainable  in  law  and  remit  the  

matter to the High Court with a request to decide the  

appeal within a period of six months.  Needless to  

say, we have not expressed any opinion on any of  

the aspects which pertain to the merits of the case.  

In  the  facts  and  circumstances  of  the  case,  the  

parties shall bear their respective costs.

……………………………….J. [K. S. Radhakrishnan]

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……………………………….J.                                            [Dipak Misra]

New Delhi; January  07, 2013

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