[S.100 CrPC] Can't Be Permitted To Contradict Initial Position To Create 'Substantial Question Of Law': Andhra Pradesh HC Dismisses Second Appeal

The Andhra Pradesh High Court has dismissed a second appeal filed holding that the parties cannot blow 'hot and cold' and cannot be permitted to 'approbate or reprobate' at the same time.

The order was passed by Justice B.V.L.N Chakravarthi in a second appeal filed by the defendants in a suit for partition by taking a contradictory stand to their initial stand and trying to create 'substantial questions of law' as mandated under section 100 of the CPC.

The original suit was filed in 2004 by a son for partition against his mother and other siblings. He stated that his father had gone missing in the year 1995 and since he had left behind ancestral property, the present suit was filed.

The defendants/appellants on the other hand relied on a will to contend that the plaintiff/son had abandoned the family long back, and owing to the same, a will was executed and the plaintiff had acquired the property awarded to him. They further contended that some of the properties that the plaintiff/son was claiming were personally acquired properties of the defendants.

The suit was awarded in favor of the plaintiff and the first appeal was dismissed with costs.

In the second appeal, the defendants/appellants raised a new argument that without establishing that the father of the plaintiff was missing, the suit itself was not maintainable. They further contended that the father of the appellants/ defendants needs to be issued a notice.

The Bench has relied on Nazir Mohamed v. J. Kamala and Ors to reiterate that a 'substantial question of law' cannot be a substantial question of law in rem and should have a direct bearing on the present case. It was also held that such a question should have been covered. It said:

"To be a substantial question of law, there must be a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of the fact, arrived at by the Courts of facts, and it must be necessary to decide that substantial question of law for a just and proper decision of the case."

With this observation, the bench noted that questions raised by the appellants were not substantial questions of law. It noted that the defendants/appellants had admitted that G. Venkata Reddy (father/husband) of appellants and respondents was missing since 1995 and had also filed a suit to declare the same, however suppressing the said fact and by misleading the court tried to raise a malicious substantial question of law.

The Court also noted that although the appellants claimed that certain properties were self-acquired, they had no evidence to prove the same and did not even enter the witness box.

It was also observed that although a will was relied upon, the attestors were not examined.

Hence, the second appeal was dismissed.

SA 427 of 2010

Counsel for appellant: T.V.S. Prabhakara Rao

Counsel for respondent: P. Prabhakar

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