September 23, 2022 In Uncategorized


In the present case titled as Chandrabhan (Deceased) Through Lrs. & Ors. v. Saraswati & Ors. in SLP (C) No. 8736 of 2016, a two Judge Bench of the Supreme Court comprising of Justice Indira Banerjee and Justice J.K. Maheshwari vide Judgment dated 22.09.2022, held that the jurisdiction under Section 100 of the Code of Civil Procedure 1908 (CPC) (Second Appeal) can be exercised only if there is substantial question of law involved.


In the present case, Baliram and Rambhau were brothers and the Original Defendant No.1, Yamunabai, was the wife of Baliram who died during pendency of the Suit. Rambhau was natural father of the Plaintiff Chandrabhan (Plaintiff) and since Baliram and Yamunabai (Defendant No.1) were childless, the Plaintiff was adopted by Baliram in the year 1950.

It is the case of the Plaintiff that the adoption was in accordance with the rites and customs of the community, in a ceremony attended by relatives, neighbours and friends. After six months of the adoption, Balram died intestate and the Plaintiff was in the possession of the Suit Properties. In 1979, the Defendant No. 1, Yamunabai purportedly gifted the Suit Properties to her daughter-in-law and wife of Plaintiff, Champabai (Defendant No. 2).

Aggrieved by such transfer, the Plaintiff filed a Suit before the Court of the Civil Judge, Senior Division, at Beed, Maharashtra (Trial Court) against his adopted mother, Yamunabai, Defendant No. 1 and his wife, Champabai, Defendant No.2, praying for declaration of ownership of the Suit Properties, perpetual injunction and other reliefs in his favour.

Trial Court

The Trial Court dismissed the Suit, vide Judgment and Order dated 31.07.1984, stating that the performance of the essential requisites of adoption, such as giving in adoption and taking in adoption had not been established. Hence, the Plaintiff was not entitled to succeed the property of his adopted father, Baliram after his death.

First Appellate Court

The Additional District Judge, Beed, Maharashtra (First Appellate Court) re-analysed the evidence and found that some discrepancies and inconsistencies were natural since the adoption had taken place in 1950 and evidence was taken in 1984, about 34 years later.  Therefore, some inconsistencies were natural. Therefore, the First Appellate Court, allowed the Appeal filed by the Plaintiff and vide Judgment and Order dated 10.11.1994 concluded that the Plaintiff had been adopted by Baliram and thus entitled to succeed the property of his adoptive father, Baliram after his death, thereby setting aside the Judgment and Order dated 31.07.1984 of the Trial Court.

High Court

The Respondent Nos.1 to 4, who were purchasers pendente lite of the Suit Property filed a Second Appeal in the High Court of Judicature at Bombay (Aurangabad Bench) (High Court). The Appeal was not challenged by the Defendant No.1 and 2.

The High Court allowed the Second Appeal vide Impugned Judgment and Order dated 11.01.2016 and observed as follows:

  1. That during pendency of the Suit, on 28-5-1979, the Suit Properties were sold by Defendant Nos.1 and 2 in favour of the Respondents (who filed the Second Appeal), without the Plaintiff’s knowledge.
  2. That revenue records showed that the Plaintiff was using the name of his natural father, Rambhau, as his father and further, he never challenged the transactions made by Defendant No.1 earlier.
  3. That the Plaintiff was already living separately from Defendant No.2. Further, he did not participate in the marriages of their two daughters.
  4. That the Plaintiff had not taken care of either Defendant No.1 or 2 after 1959.
  5. As a result, the Defendant No.1 had attachment towards Defendant No.2, as they had to live together away from the Plaintiff.
  6. All the aforesaid facts and circumstances were considered by the Trial Court, based on which it was held that the Plaintiff was not the adoptive son of Baliram and Defendant No.1 and as a result, he was not entitled to their Suit Properties, after Baliram’s death. Thus, the High Court held that the First Appellate Court committed serious error in interfering in the decision of the Trial Court.

The High Court further considered the following questions:

 “(I) Whether the first appellate Court has committed error in not considering the circumstance that other transactions of sale made by the defendant No.1 in respect of three agricultural lands like Survey Nos.86/1, 100/3 and 109/2 which were left behind by Baliram are not challenged by the plaintiff in the suit?

(II) Whether the first appellate Court has committed error in not considering the circumstance that after the death of Baliram name of defendant No.1 only was mutated in the revenue record as successor of Baliram and the name of the plaintiff was not entered as successor of Baliram?

(III) Whether the first appellate Court has committed error in not considering the circumstance that the cooperative credit society could not have given loan to the plaintiff on the lands left behind by Baliram as plaintiff was not shown as owner in the revenue record and further there is the circumstance that it is defendant No.1 who had repaid the loan?

(IV) Whether the first appellate Court has committed error in not giving due weight to the circumstance like plaintiff never used name of Baliram as his father anywhere and he continued to use the name of his natural father Rambhau?

(V) Whether due to absence of specific pleadings with regard to particulars of adoption and due to inconsistencies in the evidence of the witnesses it can be said that there is sufficient evidence to prove the factum of adoption?”

Supreme Court

Aggrieved by the Order of the High Court dated 01.02.2021 and 10.12.2020, the Plaintiff, Chandrabhan, (since deceased, represented by his legal representatives) filed an Appeal before the Supreme Court against final Judgment and Order dated 11.01.2016 passed by the High Court.

The Apex Court reiterated the principles relating to Section 100 of the CPC (Second Appeal) relevant for this case and observed as follows:

1) The Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption.

2) It cannot be said that the First Appellate Court acted without evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court.   The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.

3) The questions raised in High Court, did not meet the tests laid down by this Court for holding that the questions are substantial questions of law and further observed that:

Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court.

4) Further the Apex Court observed that there was no question of law, let alone any substantial question of law, involved in the Second Appeal and held as follows:

“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, insofar 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 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..”

The Apex Court, therefore, allowed the Appeal filed by the Plaintiff by setting aside the Impugned Judgment and Order of the High Court dated 11.01.2016 and restored the Order/Decree of the First Appellate Court in Regular Civil Appeal No.361 of 1984 dated 10.11.1994.

Manisha Popli


The Indian Lawyer

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