S.K. Ray, J.
1. This is ' a second appeal by the plaintiff from the confirming decision of the Court below dismissing her suit.
2. The relationship of the parties will be apparent from the following genealogy:
| | | |
---------------- Chakradhan Shankar Dhar-1 (D-1)
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Sunakar Arata Gurucharan | | ---------------
(D-5) (D-6) (D-7) | | | |
| | Iswar (D.2) Panchu (D-3)
| | | | | | |
Padi (D-4) Kalandi Radhu Janha Sridhar Girihari Mathuri
This genealogy was set out in the plaint, and was not challenged by the defendants.
3. The plaintiff's case is that Bhima and Panu the two brothers partitioned their properties in two halves, and were in possession of their respective shares. After the death of Panu, his three sons, Chakradhar, Shankar and Dhani jointly possessed their lands. They partitioned their properties except the suit-lands sometime later. Shankar died 40 years ago leaving his two sons, Sridhar and Giridhari, a daughter Mathuri, and his widow Duli. The two sons of Shankar were minors at the time of his death. Their mother, acting as their guardian, sold AO. 12 1/2 decimals of land to Chakradhar, the deceased father of the plaintiff by a registered sale-deed dated 24-2-21. This is the Kha Schedule land in suit. Sometime before the current settlement, Chakradhar separated from his two brothers leaving the latter joint. Sometime after the current settlement the other two brothers also separated and possessed the lands separately in accordance with their shares. Sridhar sold some lands to defendant 4 by a registered sale-deed dated 26-6-39. This is Ga Schedule land in suit. Thereafter Giridhari and Sridhar died issueless. Upon the death of Sridhar and Giridhar, the plaintiff and defendant 4 succeeded to their interest along with defendant 1. The plaintiff's case in substance is that she and defendant 4 being sisters of Kalandi are entitled to succeed to him in respect of the properties which Kalandi inherited from his father under the Hindu Law of Inheritance (Amendment) Act, 1929. Similarly, they are also entitled to partition the property of Sridhar and Giridhari which they inherited along with defendant 1.
4. Sisters became for the first time heirs under the Hindu Law of Inheritance (Amendment) Act which came into force on 21-2-29. That Act is prospective, and accordingly, they would only succeed to Kalandi if Kalandi died after the coming into force of this Act, and not if he died before it.
5. Defendants 1 and 3 contested the case. Defendant 1's main case was that Kalandi died in Magha, 1929 which is equivalent to 21-1-29. So, on the death of Kalandi, defendant I inherited his share as his next heir. They also deny, inter alia, that Duli, mother of Sridhar and Giridhari, sold any property to Chakradhar. Their further defence is that Chakradhar died in a state of jointness with his brothers, Shankar and Dhani and so also Kalandi, and accordingly the interests of those two coparceners passed to defendant 1 and his sons by survivorship.
6. On the aforesaid pleadings, two main issues were framed, viz., whether Chakradhar and his brothers were joint or separate and whether Kalandi died in Magha, 1929, that is to say, before the coming into force of the Hindu Law of Inheritance (Amendment) Act, (11/29). On both these points the concurrent findings of the Courts below are against the plaintiff. They have held that the family was joint and that Kalandi died in Magha, 1929, that is to say, before the coming into force of the Hindu Law of Inheritance (Amendment) Act.
7. Learned counsel for the appellant challenges the finding as to the date of death' of Kalandi on the basis of Ext. 4 series, Ext. 5, Ext. 1 series, and Ext. 6, a compromise petition, and part of the testimony of P.W, 7 and the so-called admission of D.W. 1. This question was thoroughly discussed by the trial Court in paras 15 to 17 of his judgment, and by the lower appellate Court in paras 11 to 15 of his judgment. All these pieces of evidence which form the basis of the appellant's contention were thoroughly scrutinised by both the Courts below. The so-called admission of D.W. 1 can lead to the result, contended for by learned counsel for the appellant, if his deposition is construed with the precision of Mathematics. He has of course stated in his chief supporting the defendant's case, but in cross-examination be said that he was near the death-bed of Kalandi and he was 29 years' old at the time. Taking that 29 years mathematically and taking his age as 55 years as noted in the heading of his deposition, it is sought to be argued that the date of death of Kalandi falls in the year 1930. In cases like these, it is not reasonable to construe his statement in the cross-examination in this manner especially when he has categorically supported the defence case. The judgment of the lower appellate Court indicates that he was aware of this portion of his (D.W. 1's) evidence but gave no weight to it. Though he gave no express reasons for it, in my view, the aforesaid reasons are good enough for discarding the same. The finding rendered by the lower appellate Court on this issue appears to me to be correct.
8. With regard to the question of separation and possession, the trial Court has considered all the oral and documentary evidence having a bearing on the question in paragraphs 20, 22, 24, 25 and 27 of his judgment, and the lower appellate Court has considered this issue also elaborately in paras 11 and 22 of his judgment. They have come to the conclusion that the onus on the plaintiff to prove separation has not been discharged. Some point has been taken on the ground of non-examination of defendant 1. This point has also been noticed by the final court of fact. According to him, defendant 1 was a very aged oldman of seventy to eighty years and has lost his eye-sight and the power of hearing, and accordingly, was not in a fit state of mind and body to be examined in this case. That apart, his son has been examined as D.W. 4. I am satisfied that there is no legal infirmity attaching to the findings of fact arrived at by the Courts below.
I can do nothing better than to quote what the Supreme Court has said about the jurisdiction of the High Court in hearing a second appeal, in the case of V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302:
'In hearing a second appeal, if the High Court, is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court.
The error or defect in the procedure to which Clause (c) of Section 100 (1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure, it is not an error or defect in the appeciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure.'
While saying so, the Supreme Court further held:
'The High Court is not justified in interfering with the finding of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate Court.
I am satisfied that the findings of the lower appellate Court cannot be said to be perverse or not supported by the evidence or is contrary to any law or usage having the force of law. It may be that another Court might take a different view of the evidence and materials on record but, as would appear from the dictum of the Supreme Court quoted above, I will pot be justified in reappraising the evidence and substituting my findings, even if I were inclined to take a different view of the evidence, for those of the lower appellate Court.
For the aforesaid reasons, I am of the opinion that there is no merit in this appeal which is accordingly dismissed with costs.