Mere Error In Framing Substantial Question Of Law Would Not Render A Judgment In Second Appeal To Be Set Aside: SC [Read Judgment]

Mere Error In Framing Substantial Question Of Law Would Not Render A Judgment In Second Appeal To Be Set Aside: SC [Read Judgment]

Perversity in arriving at a factual finding by Courts below can give rise to a substantial question of law, attracting intervention of the High Court in a Second Appeal filed under Section 100 of the Code of Civil Procedure."

The Supreme Court has observed that mere error in framing a question of law would not render a judgment in Second Appeal liable to be set aside, if it is found that a substantial question of law existed and such question has in fact been answered by the High Court.

The bench comprising Justice Indira Banerjee and Justice Sanjiv Khanna also observed that perversity in arriving at a factual finding by Courts below can give rise to a substantial question of law, attracting intervention of the High Court in a Second Appeal filed under Section 100 of the Code of Civil Procedure.

The question framed in the second appeal in the instant case [Illoth Valappil Ambunhi (D) vs. Kunhambu Karanavan] by the High Court was whether gift deed having been accepted on behalf of the donee could be revoked by the donor unilaterally? Perhaps the question should have read whether the finding of the Trial Court with regard to non acceptance of the deed of gift, confirmed in appeal, was vitiated by perversity and if it was so vitiated, whether the unilateral revocation of the deed, by the donor, can be sustained in law, the bench said. It further added:

A careful reading of the judgment of the High Court under Appeal makes it absolutely clear that those are the questions which have, in effect and substance, been addressed. In our view, a mere error in framing a question of law would not render a judgment in Second Appeal liable to be set aside, if it is found that a substantial question of law existed and such substantial question of law has in fact been answered by the High Court as in this case.

In this case, the High Court had set aside the concurrent decisions of the Trial Court and the First Appellate Court and declared that the suit property belongs to the Chuzhali Bhagavathi Dharmadeva Bhandaram.

The facts of this case are: Raman Aithan Ashari executed a deed of gift of the said property in favour of the Bhandaram. According to the appellants, though the deed of gift stated that possession had been delivered, there was no evidence of acceptance of the gift or of the Bhandaram being in possession. No presumption of acceptance of the gift could arise on the basis of the recital of delivery of possession in the deed of gift as the donee was only an inanimate body and there was no evidence of any person accepting the gift or entering into possession on its behalf. The Trial Court held that the gift executed by Raman had not taken effect, as it had not been accepted.

Upholding the judgment of the High Court which set aside the concurrent findings, the bench made these observations:

The proposition of law that when the document of transfer by gift records delivery of possession, a presumption of acceptance would arise, in the absence of overt repudiation of the gift, by and/or on behalf of the donee, is unexceptionable. As held by the High Court, when the deed itself said that the possession of the property was given to the donee, the burden of proving, that the said recital was not correct, lay on the party who asserted so. In our view, the law has correctly been appreciated and enunciated by the High Court.


The High Court rightly declined to accept the findings of the Courts below that the deed of gift had not been accepted during the lifetime of the donor, in the absence of any evidence of non acceptance of the same. The deed of gift did not provide for reversion of the suit property to the donor in case of failure to pay maintenance to the donor in terms of the deed of gift. The High Court, therefore arrived at the conclusion that Raman was not competent to execute the deed of cancellation or the deed of transfer, as he had ceased to be the owner of the suit property.

The Court also held that the findings of the Trial Courts and the First Appellate Court were based on a wrong assumption of law regarding the possession of an idol in the eye of law and the relevant recitals in the gift deed.

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