K.P. Balanarayana Marar, J.
1. Second appeal arises from a suit for partition. Defendants 11 and 12 are the appellants.
2. The suit O. S. 181/78 before Munsiffs Court, Manjeri was filed by the first respondent for partition and separate possession of 1/4th share over the plaint schedule properties. The properties were acquired in the joint names of Velu and Raman in the year 1929. Jenm rights were also purchased by them in the year 1950. Velu died 22 years before suit without male issues. Plaint alleges that the rights of Velu devolved on plaintiff and her two sisters. Even during the lifetime of Velu, plaintiff and one of her sisters were given in marriage. The third sister Cheronna was unmarried. Plaint alleges that she is the sole heir entitled to succeed Velu. Thereafter Cheronna and Raman are alleged to have possessed the properties jointly and Raman died about 18 years before suit. Defendants 1 to 3 and one Chillu are his legal representatives. Plaintiffs sister Nani died in 1958. Her children are defendants 9 and 10. Cheronna died in 1972 and her rights devolved on plaintiff and defendants 9 and 10. Defendants 4 to 8 are the legal heirs of Chillu. Plaintiff claimed 14 share. It is stated that defendants 1 to 8 are together entitled to get half share and the remaining 1/4th share goes to defendants 9 and 10. Separation of the plaintiffs share was claimed with profits, past and future.
3. Supplemental defendants 13 to 15 were subsequently impleaded and it was alleged that they were impleaded only on the contention of the other defendants that portions of the properties were held by them.
4. The suit was mainly resisted by the first defendant who questioned the maintainability of the suit and contended that the properties were purchased by Velu and Raman for the joint family and after the death of Velu, his rights had devolved on Raman. It was further contended that Velu died in 1953 and that all the daughters of Velu were given in marriage even prior to his death and before the implementation of the Hindu Succession Act. If at all Cheronna had only a right for maintenance which is not heritable. Cheronna was never in joint possession or enjoyment of the properties as alleged in the plaint. He therefore contended that Raman alone was successor in interest of Velu. According to him a portion of item No. 1 was sold to Nottah, father of defendants 5 to 8 and another portion is held by defendants 11 and 12 on the strength of a transfer for consideration. The house in the properties was renovated by defendants 11 and 12 and they are in possession of the same. Item 2 has been assigned to one Unnikutty in 1958 and that property is not available for division. First defendant further contended that the rights of plaintiff if any are barred by adverse possession and limitation.
5. Similar contentions are raised by defendants 9 and 10. Defendants 2 and 3 filed written statement supporting first defendant. Defendants 11 and 12 adopted the written statement of first defendant. Defendants 4 to 8 claimed 1/8 share over the properties alleging that the properties are jointly held by plaintiff, defendants 1 to 3 and 9 and 10. Defendants 13, 14 and 15 claimed to be in possession of portions of the properties as per sale deeds executed by Raman.
6. Documents were produced on both sides and witnesses were also examined. The trial Court after a consideration of the documents and evidence held that plaintiff is not entitled to get any share over the properties and in consequence dismissed the suit. On appeal, District Judge, Manjeri set aside the judgment and decree and granted a preliminary decree for partition of the properties into 4 equal shares and for allotment of 4 shares to plaintiff, 4 shares jointly to defendants 9 and 10, 10 shares to first defendant, 2 shares each to defendants 2 and 3 and 2 shares to defendants 4 to 8 jointly. Plaintiff was also found entitled to get profits from defendants 1 to 3. Aggrieved by that decision defendants 11 and 12 have come up in second appeal which was admitted on the following substantial questions of law formulated in the appeal memorandum.
i. Whether the lower appellate court was in error in holding that Hindu Mithakshara Law of inheritance applied to the parties who are Perumannans by caste and not the customary Makathayam Law as admitted by the plaintiff herself?
ii. Whether the lower appellate court erred in finding that Cheronna, the unmarried daughter of Velu succeeded to his 1/3 share when he died before the Hindu Succession Act?
iii. Whether the lower appellate court ought to have followed the principle of Makathayam Law of inheritance that on the death of Velu his brother succeeded to his share in preference to his children, as laid down by the Supreme Court in 1972 KLT 725? (sic)
iv. Whether the lower appellate court was right in holding that the limited right of Cheronna for maintenance became absolute right by virtue of Section 14 of the Hindu Succession Act inasmuch as no portion of the plaint property was set apart to her for maintenance or was possessed by her when the Hindu Succession Act came into force?
v. The lower appellate court overlooked the fact that under Section 15(2)(a) of the Hindu Succession Act, the plaintiff and her married sister, who were not heirs of theirfather Velu, at the time of his death, was not entitled to a share in the property of their unmarried sister inherited by her from her father?
vi. Whether the lower appellate court erred in rejecting the plea of adverse possession and limitation?
vii. Whether, in view of the special facts and circumstances of the case the lower appellate court ought to have allowed equities and reservations claimed by the appellants?
7. First respondent-plaintiff filed cross objections challenging the decree granting one-third share to plaintiff and defendants 9 and 10 together and claimed half share instead of one-third. No question of law is seen formulated in the cross-objections. But a petition has been filed as C.M.P. 35/94 seeking permission to raise the following substantial questions of law.
i. In the absence of any proof or custom among Peruvannans is the Court below justified in arriving at a finding that a son, gets right by birth in the properties purchased by his father and the father's brother?
ii. In the absence of any proof of any intention on the part of the acquirers to treat the acquired property as joint family property and in the absence of evidence to show that the properties acquired by the coparceners had been thrown into the common stock, is the court below justified in finding 1/3 right to the 1st defendant?
8. Heard counsel on both sides.
9. Though as many as seven questions of law are seen formulated in the appeal memorandum, the substantial questions of law that arise in this appeal and the cross objections are:
i. Whether cross objections can be sustained in a second appeal?
ii. Whether the daughters of deceased Velu can claim a share in the joint family property?
iii. Whether plaint schedule properties were possessed by plaintiff or any of the daughters of deceased Velu so as to claim the benefits of Section 14(1) of the Hindu Succession Act?
10. Point No. i : Section 100 of the Civil Procedure Code as substituted by C.P.C. Amendment of 1976 restricts the scope of second appeals. An appeal shall now lie to the High Court from every decree passed in appeal by any court subordinate to the High Court only if the High Court is satisfied that the case involves a substantial question of law. Sub-section (3) of Section 100 mandates that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. This court need formulate that question only, if it is satisfied that a substantial question of law is involved in the case. Sub-section (5) stipulates that the appeal shall be heard only on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The section contains a proviso that nothing in sub-section (5) shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. Section 101, C.P.C. states that no second appeal shall He except on the grounds mentioned in Section 100. Reading both these sections it is clear that no second appeal can be maintained unless a question of law is involved in the case and the question of law so involved is substantial.
11. The section as it stood before the amendment read:
'100. Second appeal -- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely :--
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this section from an appellate decree passed ex parte.'
12. The three grounds on which a second appeal could lie under old Section 100 have been abrogated and stringent provisions had been inserted in that place by which only one ground is available, viz. a substantial question of law. The object behind this amendment is that all questions of facts involved in a case must rest by the decision in the first appeal and that those questions cannot be agitated again in further appeal. There is therefore no scope for admission of a second appeal by the High Court on a question of fact. Whether a particular question is substantial or not depends upon the circumstances of the case. That means a substantial question of law between the parties in the case is involved and it directly and substantially affects the rights of the parties. Such a substantial question of law can be raised in a memorandum in the second appeal and if the High Court is satisfied that such a question of law is involved the appeal can be admitted after formulating that question. Though ordinarily the appeal should be heard only on the question of law formulated, the power of this Court to hear on any other substantial question of law not formulated by it is protected under the proviso to Sub-section (5) of Section 100.
13. The question then arises whether cross objections can be filed by any of the respondents in a second appeal. When a second appeal can be maintained only on a substantial question of law it would appear that the respondent, if he wants to raise any other substantial question of law, has to move this Court by way of a separate appeal. Learned counsel for the respondents-cross objectors draws attention to the provision contained in Rule 1 of Order 42 which makes the rules of Order 41 so far as may be applicable to appeals from appellate decrees. Rule 22 of Order 41 enables any respondent in an appeal to take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate court may see fit to allow. This provision is applicable to second appeals also and the right to file cross objections in a second appeal has not been taken away by the amended Section 100 or by any other provision introduced by the amendment, argues counsel. He has also cited various judicial pronouncements in support of this contention.
14. Rule 1 of Order 42 makes the rules of Order 41 so far as may be applicable to appelas from appellate decrees. Rule 2 introduced by the amendment of 1976 only refers to the power of court to direct that the appeal be heard on the questions formulated by it. That was inserted in consequence to the amendment made in Section 100. Still Rule 1 of Order 42 remained unchanged. The question whether the provisions contained in Rule 10 of Order 41 apply to appeals under Letters Patent came up for consideration before the Privy Council in Sabitri Thakurain v. Savi, AIR 1921 PC 80, where it was held that the provision applies to appeals under Letters Patent as to appeal under the Civil Procedure Code. The Madhya Pradesh High Court in the decision in Satyabhamadevi v. Ramkishore, AIR 1975 MP 115 held that Order 41 applies to Letters Patent Appeals and in appeals from the decisions of a single Judge in original matters or in first appeals which lie to the High Court as of right under Clause 10 of the Letter Patent (MP). Relying on the decision in AIR 1921 PC 80, it was held that cross objection can be filed under Rule 22 as of right. The Jammu and Kashmir High Court is also of the same view. In Wali Mohd. v. Faqir Mohd., AIR 1978 J & K 92, a Full Bench of that High Court held that Order 41 of the Code of Civil Procedure applies to Letters Patent Appeals. Since Order 41 permits the filing of the cross objections by the respondent there is no warrant for the conclusion that the procedure indicated in the aforesaid order does not apply to cross objections and that leave of the court is a must before they are filed. It is observed that the restriction to seek leave to file Letters Patent Appeal does not apply in the case of cross objections.
15. The purpose of Order 41, Rule 22 was discussed in detail by the Rangoon High Court in Ma Lon v. Ma Mya May, AIR 1939 Rangoon 59. After referring to the provisions contained in Rule 22 of Order 41 it was held that where respondent takes any cross objection to the decree such cross objection would be governed by the rules of porcedure governing an appeal because under Order 41, Rule 22(1) a cross objection must be such as the respondent could have taken by way of appeal.
16. The position therefore is that a respondent in an appeal can maintain a cross objection under Rule 22 of Order 41 even without the permission of the court. That provision has been made applicable to the appeals filed under Letters Patent in the decisions aforementioned. The question arises whether the principle enunciated in the above decisions can be applied to the case of cross objection filed in a second appeal filed under Section 100 C.P.C.
17. Only those provisions of Order 41 applicable to a first appeal are made applicable to an appeal filed under Section 100, C.P.C. by Rule 1 of Order 42. Even before the amendment of C.P.C. in 1976 the rule was same. It has to be seen whether there is any change on account of the amendment of Section 100, C.P.C. On a careful reading of Rule 1 of Order 42 it would appear that all the rules of Order 41 are not made applicable to second appeals whereas only those provisions 'so far as may be' are made applicable. The Nagpur High Court in Kesho Bhika v. Tukaram Puna, AIR 1951 Nagpur 8, has considered the right of a respondent in a second appeal to support a decree. After referring to the provisions contained in Rule 22 of Order 41 and Rule 1 of Order 42 it was held that the words 'so far as may be' means that if any other provision prohibits the respondent from agitating any of the grounds he would not be able to support the decree on those grounds.
18. In order to find out whether a respondent in a second appeal is comptent to maintain a cross objection and whether Rule 22 of Order 41 has been made applicable to second appeals by virtue of the provision in Rule 1 of Order 42 one has to see the grounds on which a cross objection can be taken in a first appeal. Under Rule 22 a cross objection can be filed only by a party who might have appealed but did not choose to file an appeal. The test to determine whether any objection can be taken by way of cross objection is to see whether the respondent could have appealed against the portion of the decree which is against him and whether he could have raised it in a memorandum of appeal. If he can raise such an objection in a memorandum of appeal he can also raise it by way of cross objections. The question therefore is whether the objection sought to be raised can be raised in a memorandum of second appeal.
19. An appeal to this Court under Section 100 lies only if this court is satisfied that the case involves a substantial question of law. If the memorandum of appeal has precisely stated the substantial question of law involved in the appeal and if this court is satisfied that such a question is involved this court has to formulate that question and hear the appeal on the question so formulated. If on the objections raised by the respondent a substantial question of law arises he can maintain a second appeal subject to the conditions embodied in Section 100, C.P.C. The provision of Rule 22 of Order 41 regarding the taking of cross objections by respondent in a first appeal can therefore be made applicable to an appeal from an appellate decree since the provisions in Order 41 'so far as may be' had been made applicable to second appeals also. The phrase 'so far as may be' only means that provisions of Order 41 are to be made applicable to second appeals subject to the other provisions contained in the Act relating to second appeals. In other words, the applicability of Rule 22 of Order 41 to an appeal against an appellate decree will be subject to the provisions contained in Section 100, C.P.C.
20. The position therefore is that a cross objection can be maintained in an appeal against an appellate decree but only if a substantial question of law is raised therein. The stringent conditions embodied in Section 100 shall be applicable to a cross objection filed in a second appeal. In other words, the cross objection shall precisely state the substantial question of law involved in the cross objection and the cross objections will be admitted only if this Court is satisfied that the case involves a substantial question of law. On such admission of the cross objections this court has to formulate that question and the cross objections shall be heard only on the question so formulated.
21. Though no substantial question of law was formulated in the cross objections filed by first respondent a petition was since then filed as C.M.P. 35/94 seeking permission to raise the substantial questions of law mentioned therein. Since those questions of law are involved in the cross objections taken by the first respondent C.M.P. 35/94 is allowed and the cross objections are admitted on the substantial questions of law formulated therein.
22. Points ii & iii : Plaintiff is one of the daughters of Velu who acquired the plaint schedule properties along with his brother Raman. Velu had three daughters, viz. plaintiff, Nani and Cheronna. Admittedly plaintiff and Nani were given in marriage during the lifetime of Velu. According to the plaint, Cheronna was unmarried and she succeeded Velu as his sole heir. On Cheronna's death her rights are alleged to have devolved on her sister plaintiff and defendants 9 and 10 who are the children of the other sister Nani. The lower appellate court had granted a decree for the reason that Cheronna, a limited owner has become a full owner by virtue of the provision contained in Section 14 of the Hindu Succession Act. This finding is assailed by learned counsel for the appellants on two grounds, (i) Cheronna was not as heir of Velu and (ii) she was not in possession of the property along with Raman so as to ripen that limited right into a full ownership.
23. It cannot be disputed that under Mithakshara Law a daughter who succeeds as heir to the property of a male Hindu takes only a limited estate in the property inherited by her and at her death the property passes not to her heir but to the next heir of the male from whom she inherited it. Cherionnam the unmarried daughter of Velu is alleged to have inherited the half right which Velu had over the property. Though plaintiff had a case that Velu died after the Hindu Succession Act document was produced before the trial court to show that the death took place in 1953, about three years before the commencement of the Hindu Succession Act. The parties are admittedly followers of Hindu Mithakshara Law. Even if Cheronna had inherited the rights of her father, that is only a limited estate which on her death passes to the next heir of the male from whom she inherited it. In other words, no claim can be made to that property by plaitniff and defendants 9 and 10 who are only the sister and sister's children of Cheronna.
24. Cheronna a limited owner is stated to have possessed the property along with Velu's brother Raman, the other co-sharer. The rights of Cheronna were therefore enlarged by the provision contained in Section 14(1) of the Hindu Succession Act and she had become a full owner along with Raman. The plea of joint posession had not been substantiated. According to learnd counsel for respondents, the possession contemplated in Section 14(1) of the Act need not be actual possession. The words 'Possessed by a female Hindu' had been interpreted by Supreme Court in various decisions. In Mangal Singh v. Rattno, AIR 1967 SC 1766 the Supreme Court held that the use of the expression 'possessed by' instead of the expression 'in possession of' in Section 14(1) was intended to enlarge the meaning of this expression. It was observed that the expression used in Section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. On the language of Section 14(1) the Supreme Court held that the provision will become applicable to any property which is owned by a female Hindu even though she is not in actual, physical or constructive possession of that property. .
25. In Bai Valia v. Thakar Bhai Chela Bhai, AIR 1979 SC 993 the Supreme Court held that the claim to maintenance as also the right to claim property in order to maintain herself is an inherent right conferred by the Hindu Law and therefore any property given to a widow in lieu of maintenance is merely in recognition of the claim of right which the widow possessed, possession either actual or constructive or in any other form recognised by law is sufficient to enable a female Hindu to get her limited right enlarged into an absolute right under Section 14(1) of the Act. In order to apply this provision the female Hindu must have been in actual possession or in constructive possession. Chernonna had only a right to claim maintenance from Raman. There is no material on record to show that any property had been set apart for maintenance or that Cheronna was keeping possession of any property in lieu of her maintenance. There is thus nothing on record to show that Cheronna was possessed of the porperty so as to attract Section 14(1) of the Act. If that be so, the question of rights of a limited owner getting enlaged by virtue of Section 14(1) of the Hindu Succession Act does not arise. The lower appellate court was therefore wrong in holding that Cheronna had succeeded to the share of Velu and that her limited right had got itself enlarged under Section 14 of the Act. The only right which Cheronna had to claim maintenance from Raman and that right has ceased to exist on her death. She having not been in possession of any property the question of a limited interest getting itself enalrged into full ownership does not also arise. Plaintiff and the mother of defendants 9 and 10 had not therefore acquired any rights through Cheronna. The plaintiff has therefore no right over plaint schedule properties. The claim for partition is not sustainable. The lower appellate court has committed an illegality in finding plaitniff and defendants 9 and 10 to be sharers and in granting a preliminary decree for partition. Points 2 and 3 the substantial questions which arise in this second appeal are therefore answered in favour of the appellants.
For the aforesaid reasons the second appeal is allowed and in reversal of the judgment and decree of the lower appellate court the judgment and decree of the trial court are restored. No costs. Cross objections are dismissed.