GIRDWARI Vs. RESHMI

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in the second appeal:-

(2.) Before I begin my discourse on the points raised, I must observe that it had been a long time practice of this Court to admit second appeal without framing any substantial question of law. Later, when the law was such a procedure was mandatory, it has been supplanted by a practice of lawyers appearing for appellants to frame the substantial questions in a separate memorandum and the Court placing it on record. We shall remind ourselves that it is again a wrong procedure. It is the Court's duty to elicit the questions of law, formulate them and place them on record and direct the attention of the counsel to address arguments on the formulated questions. This preface is to govern our own judicial procedure and it is expected that the bar assists the Court in framing substantial questions of law and apprise itself about the formulations before the arguments are addressed.

(3.) The second appeal is at the instance of the defendants against whom there was a suit filed for a declaration that the decree allowing for the properties to be in the ownership and possession of the grandchildren of Dhapan (mother of plaintiffs) was brought about by fraud and not binding. There was a prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs' 2/3rd share on a plea made by the plaintiffs that they were the owners of the property to a 2/3rd share by a gift by their mother at the time of their respective marriages. The defendants, who were the mother, sister and sister's children of the plaintiffs, entered a contest denying that the plaintiffs had any locus standi to file the present suit and that there had been no oral gift in favour of the plaintiffs by the mother-6th defendant. It was also contended that the suit properties had been the subject of a decree in Case No.438 of 1979 in favour of the grandchildren described as defendants 2 to 5.