JUDGMENT
T. Vaiphei, J.
1. This second appeal is directed against the appellate judgment and decree dated 15.1.03 passed by the learned Additional District Judge, Kailashahar in Title Appeal No. 34 of 1999 affirming the judgment and decree dated 29.9.1999 passed by the learned Civil Judge, Sr. Division, North Tripura District in Title Suit No. 19 of 1985.
2. It may be noted at the very outset that the appeal came up for admission on 9.6.2003, on which date, this Court directed that notice be issued to the respondents for admission hearing. In answer to the notice, the respondents through their counsel entered their appearance and submitted that there was no substantial questions of law in the appeal and, as such, the same may be dismissed at the admission stage itself. On the other hand, Sri S. Deb, the learned counsel for the appellants, strenuously argued that there was certainly substantial questions of law involved in the appeal and proposed the following points for formulation by this Court:
1. Whether the Deeds of Gift executed by late Gopendra Kumar Das are hit by Section 123 of Transfer of Property Act as having not been properly attested by at least two witnesses ?
2. Whether the Deeds of Gift are bad under Section 53 of the Transfer of Property Act being fraudulent transfer to defeat the rightful claim of the appellants, viz., the orders of maintenance passed in Misc. Case No. 16 of 1970?
3. Whether the limitation starts from the date the appellants new of the same and not from the day of execution of fraudulent Deeds of Gift?
3. Before proceeding further, a brief narration of the facts material for disposal of the appeal is called for. The plaintiffs-appellants (hereinafter referred to as ‘the appellants’) are the unmarried daughters of Gopendra Kumar Das (now deceased) through his second wife. The respondent No. 1 is also the son of the deceased Gopendra Kumar Das through his first wife. The respondent Nos. 2, 3 and 4 are the sons of the respondent No. 1 while the pro forma respondent No. 5 is the second wife of the late Gopendra Kumar Das and mother of the appellants. According to the appellants, in the year 1970, their mother, the respondent No. 5 filed an application for maintenance under Section 488 Cr.P.C. before the Munsiff-Magistrate, who by the order dated 11.2.1971 in Misc. No. 16 of 1970, directed the said Gopendra Kumar Das to pay (a) a sum of Rs. 50 per month to the respondent No. 5, (b) a sum of Rs. 120 per month for the maintenance of four children including the appellants herein and (c) a sum of Rs. 50 per month as the educational expenses for them from the date of the order, i.e., 11.02.1971.
4. It is the further case of the appellants that as there were arrears of the maintenance allowances amounting to Rs. 5,170, the respondent No. 5 filed a petition before the learned Sub-Divisional Magistrate, Kailashahar for payment of the same. The petition was treated as a part of Misc. Case No. 16 of 1970 and notice was issued to the said Gopendra Kumar Das. According to the appellants, on receiving the notice, their father with a view to deprive and defeat the arrears of maintenance allowances etc. payable to them and with fraudulent intentions, transferred all his landed properties in 1973 and 1977 to the respondent No. 1 and to the respondent Nos. 2, 3 and 4 by the registered Deed of Gift No. 1-2131 dated 25.3.1973 and the registered Deed of Gift No. 1-2624 dated 30.5.1977 respectively. It is asserted by the appellants that they and the respondents were sharing joint mess till 1969 but they were forced to leave the house by their father due to instigation by the respondent No. 1. It is also asserted by the appellants that as they were living separately, they did not know about the execution of the said Gift Deeds, and came to know of it only in January, 1985 from one Nipendra Das.
5. The respondent Nos. 1, 2, 3 and 4 contested the suit and filed their written statement by denying all the allegations of the appellants. According to the said respondents, the gift deeds were executed by the said Gopendra Kumar Das out of love for them. On the basis of the pleadings of the parties, the learned Civil Judge framed the following issues:
1. Is the suit maintainable in its present form ?
2. Is the suit barred by limitation ?
3. Are the Gift Deeds No. RN-1-2131/73 registered on 3.4.1973 and No. RN-1-2624/77 registered on 3.6.1977 in the office of the Sub-Registrar, Kailashahar, fraud, (?), consequently nul (?), void, illegal and inoperative ?
4. Are the plaintiffs entitled to get decree as prayed for ?
5. To what relief/reliefs the parties are entitled ?
6. At the trial, the appellants examined two prosecution witnesses while the respondents examined two defence witnesses. On the conclusion of the trial, the learned Civil Judge by the judgment and decree dated 29.9.1999 dismissed the suit. Aggrieved by the same, the appellants preferred an appeal before the learned Additional District Judge, who, by the impugned judgment and decree, dismissed the appeal. It may be noticed that the trial court recorded the findings that the gift deeds were executed by the said Gopendra Kumar Das during his life time in sound health and mind ; that the suit was barred by limitation since the same was filed long after the expiry of three years from the date of registration of the Gift Deeds in question ; that there was contradiction between the statements of P.W. No. 1 and P.W. No. 2 on how the appellants got the knowledge of the execution of the said gift deeds ; that there was no proof of fraudulent execution of the said Gift Deeds. The learned Additional District Judge concurred with the above findings of the trial court by holding that the appellants failed to prove with evidence that the said Gopendra Kumar Das actually received the notice issued by the Munsiff-Magistrate on the application of the respondent No. 5 for payment of arrears of the maintenance allowances, etc. ; that without receiving notice from court about the claim of the respondent No. 5 for the maintenance arrears, the appellants could not be held to have proved that the said Gopendra Kumar Das transferred the said landed properties with an intent to deprive them of their arrears of maintenance, present and future maintenance that there was no proof of fraud committed by the said Gopendra Kumar Das in the execution of the Gift Deeds in question ; that the appellants could not substantiate with evidence their claim that they came to know the execution of the Gift Deeds only in January 1985 and, as such, the trial Court correctly held that the suit was barred by limitation.
7. Mr. S. Deb, the learned senior counsel for the appellants submits that the non-examination by the Courts below of the question as to whether the gift deeds in question, not having been attested by two witnesses, is hit by Section 123 of the Transfer of Property Act. 1882, certainly raises a substantial question of law. According to the learned counsel, since the requirement of law has not been complied with in the execution of the said gift deeds thereby rendering the same null and void, this court sitting in a second appeal has the competence, and indeed the duty to decide on this point to prevent miscarriage of justice. On the other hand, it is urged with equal vehemence by Mr. S. Lodh, the learned counsel for the respondents, that this point cannot be considered in a second appeal inasmuch as no issue was framed by the trial court and no pleading to that effect was made in the plaint Indeed, no issue was evidently framed by the trial court on this point. I have also gone through the pleadings of the appellants. Therefore, there is considerable force in the submission of the learned counsel for the respondents. No doubt, the question whether a gift deed not attested by two witnesses is hit by Section 123 of the Transfer of Property Act is a question of law. However, there can also be no doubt that whether the gift deeds in the instant case were or were not attested by two witnesses is a question of fact which is to be decided by the trial court. In the absence of pleadings to that effect, such a question of fact could not be decided by the trial court. It is a settled law that the decision of a case cannot be based on grounds not pleaded by the parties, and it is the case pleaded that has to be decided: see V. K. Majotra and Ors. v. Union of India and Ors., 2003 AIR SC 4504; Trojan & Co. v. Nagappa, AIR 1953 SC 235 ; Lala Hem Chand v. Lola Pearey Lal, AIR (29) 1942 PV 64. Consequently, I hold that there is no substantial question of law on this point proposed by the learned Counsel for the appellants.
8. It is next contended by Mr. S. Deb, the learned senior counsel for the appellants that the courts below did not consider the evidence of the appellant No. 1 in her deposition that in order to deprive them of the maintenance arrears, etc., the said Gopendra Kumar Das gifted 3.52 acres of land to the respondent No. 1 and that non-consideration of these facts on record becomes a substantial question of law. However, Mr. S. Lodh, the learned counsel for the respondents counters this submission of the rival parties by stating that both the courts below have given concurrent findings that the appellants failed to prove that the gift deeds in question were executed by the said Gopendra Kumar Das in order to defeat or delay the arrears of maintenance allowances, present and future maintenance allowances granted to them by court. According to the learned counsel for the respondents, since there is no perversity in the aforesaid findings, this question cannot be raised in a second appeal.
9. In order to appreciate the rival contentions of the parties, it is necessary to reproduce in extenso the provisions of Section 53 of the Transfer of Property Act? 1882 as under :
“55. Fraudulent transfer. – (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.
Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.
A suit instituted by a creditor (which term include a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.
(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.”
10. It is thus clear that Section 53(1) renders the subsequent transfer of gift voidable at the instance of creditor likely to be defeated or delayed if the transfer was effected with a particular intent. The provision of Section 53(1) postulates the existence of two elements, namely, (a) there must be an intention to delay OF defeat on the part of the transferor and (b) there must be a creditor of the transferor. Unless the two elements, among others, are satisfied, the provisions of Section 53 cannot come into play. The learned counsel for the respondents in the course of the hearing has made available to me the certified copies of all the depositions of the witnesses on both sides. Since there is no objection from the other side, these certified copies are hereby made parts of the record.
11. Coming now to the next substantial question of law proposed, to be formulated (whether the deeds of gifts are bad under Section 53 of the Transfer of Property Act being fraudulent transfer to defeat the rightful claim of the appellants, viz., the order of maintenance passed in Misc. case No. 16 of 1970 ?), it is vehemently argued by the learned counsel for the respondents that this cannot be a substantial question inasmuch as the question is too omnibus in nature since that should have been the main issue in the suit. He draws my attention to the decision of the Apex Court in K. C. Mathew & Sons v. A Suliakha Beevi, (2000) 9 SCC 276 in support of his submission. In that case, the question before the Apex court which arose for consideration, among others, was in the following sentence :
“The prime question involved in this appeal is whether the first respondent tenant is entitled to protection under Section 106 of the Kerala Land Reforms Act”.
The Apex Court held that the question appeared to be too omnibus in nature as that was the main issue of the suit. According to the Apex Court, substantial question of law, if any, should be resolved for deciding the main issue involved in the suit. It further held that such question could not at any rate be treated as a substantial question of law to be determined by the High Court in the second appeal.
12. In the instant ease, the point proposed above cannot be said to involve a substantial question of law. In the first place, the question so proposed by the appellant himself established on its face the law necessary to settle the question in dispute without even having to interpret the law. Fraudulent transfer to defeat the rightful claim of the appellants, without any shadow of doubt, will be hit by Section 53 of the Transfer of Property Act. Consequently, there is no substantial question of law in the above point proposed by the appellants. Secondly, what is or amounts to “substantial question of law” has been restated by the Apex Court in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 in the following words (para 14) :
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 of the case. An entirely new point raised for the first time before the High Courts 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 circumstances of each case whether a question of law is a sustainable 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 paragraph extracted above clearly demonstrates that if a point of law admits of no two opinion, it may be, at the most, a proposition of law but the same cannot be a substantial question of law. In the instant case, the point as proposed above by the appellants for formulating a substantial question of, law in this appeal, in my judgment, can at the most be a proposition of law but not a substantial question of law for the reason noted by me earlier. In that view of the matter, it is difficult to accept the submission of Mr. S. Deb, the learned counsel for the appellants, that there is substantial question of law involved in the aforesaid point proposed by him.
13. In so far the third point, i.e., on the point of limitation is concerned the contention of the learned counsel for the appellants must meet the same fate. I have carefully examined the findings of the courts below and the certified copies of the depositions of P.W. 1 and 2. P.W. 1 is the plaintiff No. 1 (the appellant No. 1) in the suit. In her deposition, she states that in 1984/85, she came to know from Nepal Das (P.W. 2) regarding the aforesaid two gift deeds for the first time. However, P.W. 2 in his cross-examination deposes that he did not disclose to Rita Das that he learnt the matter of gift from Nipender Das. It is unusual on the part of P.W. 2 not to disclose his source of information about the two gift deeds. It may be pertinent to note that the two gift deeds in question were executed in 1973 and 1977 while the suit was filed by the appellants only on 19.7.1985. Both the courts below held the concurrent views that the appellants could not give sufficient cause or satisfactory explanation for the delay in filing the suit in time. The jurisdiction of the High Court in a second appeal to interfere with the concurrent findings of fact arrived at by the two courts below is no longer res Integra. The Apex Court in the recent decision of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., (1999) 3 SCC 722 reiterated the law thus :
“5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made, by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
14. From the aforesaid observation of the Apex Court, it is thus crystal clear that even if some other inference can be drawn from a given set of facts and circumstances, this Court cannot substitute the inference drawn by the lower appellate Court by its own unless the inference so drawn is found to be irrational or based upon inadmissible evidence or arrived at without evidence. In the instant case, on careful examination of the impugned judgment and the evidence available on record, I am of the considered opinion that the findings of the courts below cannot be held to be based on no evidence. This court in exercise of its jurisdiction under Section 100 of the Code cannot also examine the sufficiency or adequacy of the evidence to support the findings of facts arrived at by both the courts below. Therefore, there is no substantial question of law worthy of formulation on the point of limitation urged by the learned senior counsel for the appellants.
15. For the reasons and conclusions stated above, I do not find any question of law, much less a substantial question of law, to be formulated in this appeal. Consequently, this second appeal need not be entertained. In the result, the second appeal stands dismissed at the admission stage.
However, in the peculiar nature of the case, the parties are directed to bear their own costs.
