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Second Appeal – The requirement of Substantial Question of Law

SUPREME COURT OF INDIA
Kunjumuhammed & Anr. v. Mariyumma
Civil Appeal No. 2771 OF 2020 | 17th July, 2020
FACTS
In the present case, Mariyumma (hereinafter referred to as “the Respondent”) is the widow of late Muttungal Pareekutty and step mother of Kunjumuhhamed (hereinafter referred to as “the Appellant”). The dispute between the parties was regarding the property owned by Pareekutty (hereinafter referred to as “property”) through a Usufructuary Mortgage Deed.
Pareekutty had assigned mortgage right in favour of Subramonia Pillai, who assigned the same in favour of the Respondent in 1966. The said mortgage was never redeemed and the property was jointly possessed by Pareekutty and the Respondent, where they were engaged in cultivation activities. The Appellant had acquired “janman rights” or birth rights over the property.
After the death of Pareekutty, the Respondent was in possession and enjoyment of the property. Whereas the Appellant contended that the mortgage right was never transferred to Subramonia Pilai and he never held the property. Through janman rights of the property, the Appellant had been in possession and enjoyment of the property. Hence, the suit was filled by the Respondent seeking prohibitory injunction against the Appellant.
After considering the evidence on record, the trial court decreed the suit on a finding that the Respondent was in possession and enjoyment of the property on the date of suit. However, on an appeal preferred by the Appellants, the lower Appellate Court reversed the said findings and dismissed the suit.
The legality and correctness of the divergent findings of the trial court and the lower Appellate Court was the basis for the Appeal that came for consideration before the High Court of Kerala, on the basis of questions of law shown in the Memorandum of Appeal.
The High Court of Kerala, allowing the Second Appeal, set aside the judgment of the lower Appellate Court and restored the decree of the trial court. The decision so passed by the High Court of Kerala was further challenged before the Supreme Court regarding the validity of the Second Appeal.
ISSUE BEFORE THE SUPREME COURT 
The following issue was considered by the Supreme Court of India:
Whether the Court can allow Second Appeal on the basis of question of law mentioned in the memorandum of appeal?
DISCUSSION AND FINDINGS
The Three Judge Bench of the Supreme Court took exception to the judgment and Order passed by the High Court of Kerala in Second Appeal No. 209 of 2003. It observed that the Second Appeal was entertained by the High Court without formulating substantial question of law.
The Court observed that in Paragraph 4 of the impugned judgment, the High Court had made it apparent that no substantial question of law was formulated. The High Court had allowed the appeal for consideration solely on the basis of question of law mentioned in the memorandum of appeal.
Paragraph 4 of the impugned judgment stated that:
“Thus, the legality and correctness of the divergent findings, whereby the trial court decreed the Suit and the lower appellate court allowed the Appeal have come up for the consideration of this Court, on the basis of questions of law shown in the Memorandum of Appeal.”
The Court observed that the High Court was obligated to formulate substantial question of law before proceeding with the arguments. The Court can not rely upon a mere reference to the question of law “shown” in the Memorandum of Appeal to allow the Second Appeal. Thus, the Court observed that the approach adopted by the High Court is not in accordance with the settled principles of law.
Further, the Court observed that there was a possibility of more than one question of law being formulated as substantial question of law in the Memorandum of Appeal. It is the responsibility of the Court to determine which question of law is substantial and to examine and answer the same.
Therefore, the Court observed that:
“The Court ought to have formulated substantial question of law and proceeded with the arguments thereafter. A mere mention about the question having been formulated in the memorandum of appeal is not enough. That is not in accord with the settled law. It is possible that more than one question of law had been formulated in the appeal memo, as substantial question of law. The Court ought to advert to the question which it thinks appropriate to examine and then answer the same, as is mandated in terms of the settled legal position.”
The Court referred to the settled legal position followed in various judgments, including Bokka Subba Rao v. Kukkala Balakrishna and Ors (2008) 3 SCC 99. In Paragraph 4 of Bokka Subba Rao it was held that:
“Having heard the learned counsel for the parties and after examining the judgment of the High Court passed in the second appeal, we are of the view that the judgment in second appeal of the High Court is liable to be set aside on a very short question. It is now well settled by catena of decisions of this Court that the High Court in second appeal, before allowing the same, ought to have formulated the substantial questions of law and thereafter, to decide the same on consideration of such substantial questions of law. In this case, admittedly no such substantial question of law had been formulated and thereafter, the second appeal was allowed. That being the position, we set aside the judgment of the High Court passed in second appeal and remit the appeal back to the High Court for fresh decision after formulating the substantial questions of law and thereafter, to decide it on merits.”
DECISION 
The Supreme Court set aside the impugned judgment and order of the High Court of Kerala which allowed the Second Appeal on the basis of question of law as shown in the Memorandum of Appeal.
Further, it relegated the parties before the High Court of Kerala for re-consideration of Second Appeal on merits and in accordance with law and settled legal positions. The Court left all the contentions of the parties open ended to be decided on own merits by the High Court and further directed the High Court to take up the Second Appeal for hearing expeditiously.
AMLEGALS REMARKS 
Through this Order, the Supreme Court has reiterated a well settled position of law concerning Second Appeals. It held that a mere mention about the formulation of question of law in the Memorandum of Appeal is not sufficient to allow a Second Appeal.
The Supreme Court in a catena of decisions has held that the High Court shall mandatorily frame substantial question of law in second appeal, even if the findings of the lower courts are perverse per se. This view was followed recently in Sreedevi v. Sarojam, Civil Appeal No. 1301 of 2019, arising out of a Kerala High Court judgment in Second Appeal.
It is imperative to note that the Supreme Court has also observed that a mere error in framing substantial question of law would not render a judgment in Second Appeal to be set aside in Illoth Valappil Ambunhi (D) vs. Kunhambu Karanavan Civil Appeal No. 1429 of 2011.
Therefore, a Second Appeal can only be allowed by the High Court when a substantial question of law is formulated by the Court, and not on mere mention of question of law in the memorandum of appeal.
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