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2) High Court has gone beyond the mandate of S. 100 Civil Procedure Code, 1908 by needlessly addressing the questions of genuineness and validity of settlement deed and will of Mottaya Poosali despite the fact that no substantial question of law, with respect to same, was framed either at the time of admission or at the time of hearing of the Second Appeal.

Section 100 of the Code of Civil Procedure provides that the second appeal would lie to the High Court from a decree passed in an appeal by any court subordinate to the High Court, if the High Court is satisfied that the case "involves a substantial question of law". Bare perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal. Section 100 reads :-

Coming to the facts of the present case, we find that the two courts on appreciation of the entire evidence came to the conclusion that the Plaint A Schedule properties at item nos.22 to 26 and 29 were self acquired properties of Mottaya Poosali and were not purchased with the funds of the Joint Hindu Family. The High Court, on re- appreciation of evidence has held that these properties were not the self acquired properties of Mottaya Poosali and were purchased with the funds of the Joint Hindu Family. Apart from the fact that the High Court on re-appreciation of evidence could not set aside the findings recorded by the courts below on facts, the fact that these properties were the self acquired properties is demonstrated by the fact that the properties at item nos.22 to 26 and 29 were purchased by Mottaya Poosali between 29th April, 1953 to 19th January, 1956. Item nos.23 & 24 were purchased vide sale deed (Ex.B-12) dated 04.06.1952, item no.22 was purchased vide sale deed (Ex.B-13) dated 29.4.1953, item no.26 was purchased vide sale deed (Ex.B-14) dated 20.01.1955 and item nos. 25 & 29 were purchased vide sale deed (Ex.B-15) dated 19.01.1956. During this period Mottaya Poosali was a member of the Joint Hindu Family consisting of himself and his two brothers Ayyaswamy Poosali and Ammasi Poosali. The partition between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali took place in the year 1970. Had these properties been purchased with the funds of the Hindu Joint Family property, then the same would have formed part of the Joint Hindu Family consisting of Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali. In the registered partition deed dated 19th July, 1970 between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali these properties were treated to be the self acquired properties of Mottaya Poosali and were not subjected to the partition. Mottaya Poosali in partition was allotted properties item nos.11 to 21 and 28 only. This clearly demonstrates that the properties item nos.22 to 26 and 29 were the self acquired properties of Mottaya Poosali and were treated by him as such throughout. Being the self acquired property, Mottaya Poosali had the absolute right to dispose them of in any manner he liked i.e. by way of sale, gift or will. The findings recorded by the High Court that these properties were acquired with the funds of Joint Hindu Family is factually incorrect and the finding recorded by the courts below on facts were correct and the High Court has clearly erred in reversing the same. The counsel for the appellants is right in his submission that the High Court has overstepped in the exercise of its jurisdiction in reversing the concurrent findings of fact recorded by the courts below in a second appeal filed under Section 100 CPC. Coming to the second point raised by the counsel for the appellants, it may be stated that the trial court as well as the first appellate court on appreciation of oral and documentary evidence rendered a finding that the settlement deed dated 22.03.1977 and the will dated 23.03.1973 were genuine and had been duly executed. The respondents either in their pleadings or in their evidence or in the memorandum of grounds of second appeal did not question the genuineness or due execution of the settlement deed and the will. No substantial question of law was framed at the time of admission of the appeal or at a subsequent stage regarding the due execution and the validity of the settlement deed and the will. The High Court could not go into the questions which had not been raised by the respondents either in their pleadings or in the evidence or in the memorandum of grounds of second appeal. Jurisdiction of the High Court under Section 100 CPC is limited to a substantial question of law framed at the time of admission of the appeal or at a subsequent stage if the High Court is satisfied that such a question of law arises from the facts found by the courts below. The High Court could not go into the question regarding the due execution and the validity of the settlement deed or the genuineness of the will which had not been challenged by the respondents either in their pleadings or in their evidence or in the memorandum of grounds of second appeal. As has been pointed out earlier in Clause 3 of Section 100 the person preferring the second appeal is required to precisely state the substantial question of law involved in the case and the High Court being satisfied that a substantial question of law is involved in the case shall formulate the said question. The appeal can be heard on the questions so formulated or on any additional question of law which may be framed later on if the Court is satisfied that the case involves such question. The only question of law framed in this appeal was, as to whether the properties at item nos.1 to 9, 22 to 26 and 29 of the Plaint A Schedule properties were Joint Hindu Family properties available for partition or not. The High Court could hear the appeal on the question of law formulated and not on any other point without framing additional substantial question of law which it did not do. Since there was no substantial question of law framed either at the time of the admission or later regarding the validity and genuineness of the settlement deed and the will the High Court did not have the jurisdiction to set aside the findings recorded by the courts below regarding the validity or the genuineness of the will executed by Mottaya Poosali. The findings recorded by the High Court regarding the validity and genuineness of the will are thus vitiated and cannot be sustained.