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Case Number

Appeal No. 28 of 1946, for leave to appeal to His Majesty in Council

Attorney(S)

Mr. D. Sanyal, for the applicant.
Mr. M.L Chaturvedi, for the opposite parties.

Judges

Kamla Kanta Verma, C.J
Sinha, J.

Acts

section 596 of the Code of Civil Procedure of 1882,
section 110(b) of the Code of Civil Procedure
section 110 of the Code of Civil Procedure
section 110(6) of the Code of Civil
section 110(b) of the present Code,
SECTION 110 CIVIL PROCEDURE CODE

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Smart Summary

Structured Summary of the Opinion (Sinha, J.) — Certification under Section 110, Code of Civil Procedure

Factual and Procedural Background

Mst. Ram Devi (the applicant) brought a suit seeking a declaration that she was the sole owner of a specified enclosure and that the defendants (including Badlu Ram and Ambey Prasad) were not entitled to proceed against it in execution of earlier decrees (notably suit No. 183 of 1938, Badlu Ram v. Mool Chand, and suit No. 4336 of 1934 of the Court of Small Causes at Cawnpore, and execution case No. 205 of 1937 in the suit by Ambey Prasad against her husband, Mool Chand). She also sought restraint on Mool Chand from realising rents from the enclosure's tenants.

The value of the subject-matter was pleaded at Rs. 17,500 (also the court-fee value). At trial the learned Civil Judge of Cawnpore held that the plaintiff (Mst. Ram Devi) was the owner and granted the declaratory relief. Mool Chand did not file a defence. Badlu Ram and Ambey Prasad contested on the ground that the property belonged to Mool Chand.

Badlu Ram alone appealed to the High Court. A Bench of the High Court held that the plaintiff had failed to show that she had acquired an interest in the property and set aside the trial decree insofar as it was against Badlu Ram.

Mst. Ram Devi applied for leave to appeal to His Majesty in Council under section 110 of the Code of Civil Procedure, asserting that the decree of the High Court involves, "directly or indirectly, some claim or question to or respecting property" of value Rs. 10,000 or upwards (the threshold in section 110).

Legal Issues Presented

Whether the proposed appeal to His Majesty in Council involves, directly or indirectly, a claim or question to or respecting property of the value of Rs. 10,000 or upwards within the meaning of the second part of section 110 of the Code of Civil Procedure (section 110(b)).
Whether the fact that the mortgage decree in favour of Badlu Ram is for an amount below Rs. 10,000 precludes certification under section 110 when the entire enclosure is valued above Rs. 10,000 (i.e., whether the applicant's interest in the whole property suffices to meet the statutory value requirement even though a particular defendant's pecuniary liability is less than Rs. 10,000).

Arguments of the Parties

Applicant's Arguments

The applicant relied on authority (Sri Kishan Lal v. Kashmiro and Nadir Husain v. Municipal Board, Agra) to contend that section 110 is satisfied if the proposed appeal involves, directly or indirectly, questions respecting property whose total value is Rs. 10,000 or more even though the precise pecuniary interest of a particular defendant (e.g., the mortgage decree) may be below Rs. 10,000.
The applicant stressed the statutory language that the decree or proposed appeal need not involve the claim "directly" but may do so "indirectly" and submitted that this wording was intended by the Legislature to capture such situations.

Opposite Party's Arguments

The opposite party's counsel argued that certain authorities (including Bai Shevantibai v. J.R. Warick of the Privy Council) limit the application of earlier decisions and that partition cases (and analogous holdings) cannot be used as a guide for the present question.
Reliance was placed upon cases such as Hanuman Prasad v. Bhagwati Prasad, Sudaman Prasad v. Mohd. Abdul Alim, Prag Narain v. Fakhrul Nisa, and Mirza Abid Husain Khan v. Ahmad Husain to support the contention that the value test in section 110 relates to the applicant's own right or pecuniary interest and not merely to the aggregate value of property that may be affected incidentally; in other words, the rights or claims involved must themselves be worth Rs. 10,000 or upwards.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sri Kishan Lal v. Kashmiro	Held that a decision affecting the validity of an award (and thereby property outside the suit) could satisfy the section 110 value requirement when the wider property affected exceeded Rs. 10,000; indirect involvement of property value suffices.	The Court treated this authority as supporting the applicant's contention that indirect involvement of property of value Rs. 10,000 or more brings the case within section 110.
Nadir Husain v. Municipal Board of Agra	Held that even if the pecuniary liability of particular defendants was limited below Rs. 10,000, property worth more than that amount could be sold in execution and therefore the appeal could involve property of value Rs. 10,000 or more for the purposes of section 110.	The Court relied on this decision as supporting the proposition that the statutory threshold can be met where the wider property affected is of sufficient value, and regarded it as relevant to the present facts.
Mohammad Asghar v. Abida Begam	Previously used to support that although a plaintiff's share may be less than Rs. 10,000, the entire property's value (if ≥ Rs. 10,000) could satisfy section 110.	Referenced as part of a line of authority (partition/whole-property reasoning) that the Court considered relevant; the Court noted, however, that partition cases have been limited by later Privy Council authority.
Bai Shevantibai v. J.R. Warick (Privy Council)	Held that a question as to title to a plaintiff's share in joint property does not automatically become a question respecting the whole joint family estate merely because establishing that title may result in partition.	The opposite party relied on this Privy Council decision to argue restriction of the partition-based approach; the Court accepted that partition cases cannot be used as a proper guide after this decision but declined to treat it as dispositive for other classes of cases.
Hanuman Prasad v. Bhagwati Prasad	Held that it is not sufficient that a decree's question of title may possibly affect the title of persons not parties to the suit to property not the subject-matter of the suit; mere potential effect on outside property does not meet the requirement.	The Court discussed this authority as representing the opposing line of decisions (particularly Oudh decisions) and distinguished it from the present matter, finding it not controlling here.
Sudaman Prasad (Lala Sudaman Prasad) v. Mohd. Abdul Alim	Refused leave under section 110 where the applicant's pecuniary right was less than Rs. 10,000 even though the property affected had a value above Rs. 10,000; emphasized that the suit must involve rights/claims worth Rs. 10,000 or more.	The learned Judges in that case took a restrictive view; Sinha, J. expressly dissented from applying that restrictive approach to the present case and preferred the contrary line of authority.
Prag Narain v. Fakhrul Nisa	Followed the restrictive approach (similar to Sudaman Prasad) regarding the value test under section 110.	Noted by the Court as following the restrictive Oudh/Bombay/Madras line which the present Court declined to follow as binding in the present circumstances.
Mirza Abid Husain Khan v. Ahmad Husain	Held that although the property securing an annuity was worth more than Rs. 10,000, the annuity's value being less than Rs. 10,000 meant section 110 did not apply (focus on the applicant's specific interest/value).	The Court considered whether this decision was against the applicant but distinguished it: there the applicant's interest was limited to an annuity; in the present case the applicant claimed ownership of the whole enclosure.
Aisha Begam v. Kundan Jan	Commentary: the Court observed difficulty reconciling Sri Kishan Lal and Hanuman Prasad; noted as a recent consideration of the conflicting lines of authority.	Referred to as showing the difficulty of reconciling competing precedents; used to contextualize the Court's choice between lines of authority.

Court's Reasoning and Analysis

The Court began by identifying the statutory language and legislative intention: section 110 requires that a decree or proposed appeal "involve, directly or indirectly, some claim or question to or respecting property" of Rs. 10,000 or upwards. The Court emphasized that the statute explicitly allows indirect involvement to suffice.

The Court then considered the authorities relied upon by both sides. The applicant's primary authorities (Sri Kishan Lal and Nadir Husain) were examined and their factual matrices recited: in Sri Kishan Lal a dispute over family property and mortgagee rights (part of a larger estate worth substantially more than Rs. 10,000) led this Court to grant leave; in Nadir Husain this Court had likewise taken a view that the possibility of sale of property worth more than the statutory threshold could satisfy section 110 despite limited pecuniary liability of certain defendants.

The opposite party relied on a number of decisions (including the Privy Council in Bai Shevantibai and other Oudh/Bombay/Madras cases such as Hanuman Prasad and Sudaman Prasad) which took a narrower approach: the value test in section 110 was to be satisfied by the value of the particular rights or pecuniary interest of the applicant (or the liability attaching to a particular defendant), not merely by the broader value of property that might be affected incidentally.

Sinha, J. considered these conflicting lines. He accepted that Bai Shevantibai curtailed the utility of partition cases as a guide, but he did not accept that Bai Shevantibai or the Oudh/Bombay/Madras decisions compelled rejection of the broader interpretation in other classes of cases. He expressly dissented from the restrictive reasoning in Sudaman Prasad to the extent that it refused to follow Nadir Husain, observing that no persuasive reason had been assigned for abandoning the broader view.

The Court distinguished Mirza Abid Husain Khan because in that case the successful applicant's interest was confined to an annuity (a limited pecuniary interest). In contrast, in the present matter the applicant claimed direct interest in the whole enclosure (valued at Rs. 17,500) and sought a declaration of sole ownership. The Court considered that factual difference material to the application of the section 110 threshold.

Having weighed the language of the statute and the competing authorities, the Court concluded that the language of section 110(b) supports the interpretation that indirect involvement of property of sufficient value can satisfy the statutory requirement. The Court therefore found that the present case meets the criteria of section 110(b).

Holding and Implications

Holding: The Court certified that, as regards amount or value, and nature, the case fulfills the requirement of section 110 of the Code of Civil Procedure (specifically section 110(b) as discussed in the opinion).

Implications:

Direct effect on the parties: The certification means that the matter satisfies the statutory threshold for seeking leave to appeal to His Majesty in Council under section 110(b); the applicant's case meets the value-and-nature requirements as articulated in this opinion.
Treatment of precedent: The Court stated its preference for the line of authority represented by Sri Kishan Lal and Nadir Husain over the more restrictive Oudh/Bombay/Madras approach in Sudaman Prasad and similar cases, at least for the category of cases exemplified by the present facts. The Court distinguished authorities (such as Mirza Abid Husain Khan) where the applicant's interest was materially narrower (e.g., limited to an annuity).
No assertion of broader novel precedent beyond the confines of the opinion: The Court limited its conclusion to the present case and the statutory interpretation of "directly or indirectly" in section 110(b), noting the factual distinctions that rendered certain earlier restrictive decisions inapplicable here.

Additional judicial notes in the opinion: Verma, C.J. concurred. Per Curiam certified the case as fulfilling the requirements of section 110.

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Ram Devi v. Badlu Ram

Sinha, J.:— This is an application for leave to appeal to His Majesty in Council under section 110 of the Code of Civil Procedure on the ground that the decree of this Court involves,

“directly or indirectly, some claim or question to or respecting property”

of the value of Rs. 10,000 or even upwards. The facts, which are, for the purposes of this application, not in dispute, are briefly these.

The applicant, Mst. Ram Devi, brought a suit for a declaration that she was the sole owner of a certain enclosure and the defendants were not entitled to proceed against it in execution of the decree in suit No. 183 of 1938, Badlu Ram v. Mool Chand and of the decree in suit No. 4336 of 1934 of the court of small causes at Cawnpore nor in the execution case No. 205 of 1937, passed by the Munsif of Cawnpore, in the suit brought by Ambey Prasad against her husband, Mool Chand. There was a further prayer that the defendant No. 2, Mool Chand., be restrained from realising the rents from the tenants of the said enclosure. Her case, in substance, was that she was the owner of the property and not her husband, who had no right to deal with it. The value of the subject-matter of the suit for the purposes of jurisdiction, was laid at Rs. 17,500 and the same was the value for the purposes of court-fee.

Mool Chand entered no defence. Badlu Ram and Ambey Prasad raised a defence which was, in substance, identical. They pleaded that the property belonged to Mool Chand and not the plaintiff, who was his wife. Various other defences were raised, which are not germane to the present application.

The learned Civil Judge of Cawnpore found that the plaintiff, and not Mool Chand, was the owner of the property. He granted the plaintiff the declaration that she was the owner of the property in dispute and that it was not liable for the debt due to Ambey Prasad or Badlu Ram.

Badlu Ram alone came to this Court in first appeal. A Bench of this Court held that the plaintiff had failed to show that she had acquired an interest in the property. In the result, it set aside the decree of the learned Civil Judge so far as it went against Badlu Ram.

Mst. Ram Devi now seeks to go in appeal to His Majesty in Council.

It is conceded that the mortgage decree passed in favour of Badlu Ram is for a sum far below Rs. 10,000. It is, however, not denied that the value of the entire enclosure is above Rs. 10,000 that is, Rs. 17,500. The question, therefore, is whether the facts of this case attract the application of the second part of section 110 of the Code of Civil Procedure. In other words, even though the interest of Badlu Ram is less than Rs. 10,000 does the proposed appeal “involve, directly or indirectly, some claim or question to or respecting property” of the amount or value of Rs. 10,000.

The intention of the Legislature is clear. The section does not merely say that the decree of this Court or the proposed appeal to His Majesty in Council must involve a claim to or respecting property of Rs. 10,000 “directly”, but it is enough if it involves such a claim even “indirectly”.

The learned counsel for the applicant relies on Sri Kishan Lal v. Kashmiro(1) and Nadir Husain v. Municipal Board Agra(2). The facts of Sri Kishan Lal were these:

There was a dispute between the heirs of one Harnam Prasad as to the division of the family property. The family was possessed of property worth over Rs. 1,60,000, among which were certain mortgagee rights. The matter was referred to arbitration by the male heirs, and an award was made in 1893 by which all the property, including the mortgagee rights, was divided among the defendant, Mst. Kashmiro, the widow of the deceased, and certain persons who claimed to be members of the joint family with the deceased, the plaintiff being amongst them. The lady was given an eight anna share in the mortgagee rights, while the plaintiff was given four annas. The lady alone brought a suit upon the mortgage and recovered the money from the mortgagors. The plaintiff, thereupon, brought the suit for recovery of his share in the mortgage money. The suit was valued at more than Rs. 10,000. The Lower Court gave the plaintiff a decree for Rs. 8,800. In appeal the High Court, holding that the award was fraudulent and collusive and that the family was a separate family, dismissed the suit. The plaintiff applied for leave to appeal to His Majesty in Council.

This Court granted leave and observed as follows:

“This Court held, reversing the decision of the court below, that the award was not binding on the lady for reasons stated in this Court's judgment. It is the correctness of this decision which is challenged in the proposed appeal. If the decree of this Court becomes final, the question of the validity of the award will also become final as regards property other than the property in dispute in the present suit.”

It, therefore, supports the applicant's contention. The facts in the case of Nadir Husain v. Municipal Board of Agra are not very clear from the judgment, but they appear to be these:

The Municipal Board of Agra brought a suit for recovery of Rs. 17,000 against defendant No. 1 principally, with a prayer that defendants 2 to 4 were liable to pay Rs. 7,625 under a hypothecation bond and, in the event of default, the mortgaged property was liable to be sold. There was a further relief that, in case the mortgaged property was not found sufficient to satisfy the mortgage decree, the plaintiff would be permitted to apply for a money decree against defendant No. 1. The value of the subject-matter in dispute in the trial court was more than Rs. 10,000 so far as all the defendants were concerned, but was less than Rs. 7,525 so far as the defendants Nos. 2 to 4 were concerned. The Subordinate Judge held that defendant No. 1 was liable for the full amount, but that the defendants 2 to 4 were liable to the extent of Rs. 7,265 only, qua the arrears of rent which had accrued prior to the date of the security bond, but that their property was not liable for rents which accrued after the security bond. The plaintiff appealed to the High Court and this Court held that the rents which accrued after the date of the security bond also created a charge on the property which was liable to be sold in execution of such arrears. But the total liability of defendants 2 to 4 was limited to the sum of Rs. 7,265 only.

Defendants 2 to 4 sought leave to go in appeal to His Majesty in Council. The learned Judges allowed leave and held that,

“So far as the pecuniary liability of the applicants' property is concerned it is certainly limited to the sum of Rs. 7,625 only. They can never be called upon to pay more than that amount nor can more than that amount be realised out of their property. But it cannot be disputed that property worth more than Rs. 7,625 can be put up for sale at auction in execution of the mortgage decree and sold. After the realisation of Rs. 7,625 the balance will have to be paid to the defendants. It is also clear that at auction the mortgaged property may not fetch its full value and therefore property worth more than Rs. 10,000 may be sold at auction for realising Rs. 7,625 only. The defendant can never recover the property when once sold though he will get the surplus, if any. In cases of partition it has been held by this Court in the case of Sri Kishan Lal v. Kashmiro and in Mohammad Asghar v. Abida Begam that although the value of the plaintiff's share may be less than Rs. 10,000 the entire property involved is of the value of Rs. 10,000 or upwards and the requirement of section 110, Civil Procedure Code, is fulfilled.”

The learned counsel for the opposite party contends that the latter is no longer good law, in view of the decision of their Lordships of the Privy Council in Bai Shevantibai v. J.R Warick(3) inasmuch as their Lordships have specifically overruled Mohammad Asghar v. Abida Begam and have distinctly held that—

“a question as to the title of the plaintiff to the share which he claims in the joint property does not become a question respecting the whole of the joint family estate merely, because if his title is established it will result in the joint family estate being partitioned.”

The learned counsel is right, only in so far that partition cases cannot now afford a proper guide for the determination of the question before us. The question still remains whether the decision in Nadir Husain's case is good authority in other classes of cases.

Reliance is also placed on behalf of the opposite party on Hanuman Prasad v. Bhagwati Prasad. The facts were these:

One Paltan Singh died in 1822. One of his widows, Harnam Kunwari, sold a share in village Kot Kamarhya. Hanuman Prasad, one of the reversioners, brought a suit for cancellation of the sale-deed. It was decreed by the trial court, but dismissed by the High Court. An application under section 596 of the Code of Civil Procedure of 1882, which corresponds to section 110(b) of the present Code, was made for leave to appeal to His Majesty in Council. The value of the suit of the appeal to the High Court and of the proposed appeal to His Majesty in Council was less than Rs. 10,000, but it was argued that the title of other purchasers to the rest of the villages transferred by the lady depended on the decision of the case.

The learned Judges rejected the argument and held that—

“It is not enough that the question decided by such decree is a question of title which may possible affect the title of persons who are not parties to the decree to property not the subject-matter of the suit in which the decree was passed, and concerning the title to which property there is no litigation pending.”

Reliance is also placed on Sudaman Prasad v. Mohd. Abdul Alim and Prag Narain v. Fakhrul Nisa. The latter only follows the earlier.

In the case of Lala Sudaman Prasad, the applicant, Sudaman Prasad, had a decree for a sum of Rs. 9,957-5-3, that is, less than Rs. 10,000, but the property against which he sought attachment was worth more than Rs. 10,000. Leave was refused on the ground that—

“The suit must involve rights and claims to property which rights and claims are worth Rs. 10,000 and upwards, not that the rights affect properties whose value is Rs. 10,000 and upwards.”.

The learned counsel has also taken his stand upon Mirza Abid Husain Khan v. Ahmad Husain(4). Their Lordships held that, although the property liable for the payment of the annuity was worth more than Rs. 10,000, nevertheless, as the value of the annuity itself was less than Rs. 10,000 the case did not come within section 110(6) of the Code of Civil Procedure.

In so far as the learned Judges, in the case of Sudaman Prasad, refused to follow the decision of this Court in Nadir Husain, I must, with air respect dissent from their view. No reason has been assigned, except that it runs counter to the view expressed in some cases of Bombay and Madras. All the Bombay cases were partition and partnership cases. It is not possible to ascertain the nature of the suit from one of the Madras cases; the other is based upon an earlier partition cases of Bombay. These cases form a class by themselves. As I have observed above, after the decision of their Lordships of the Judicial Committee in Bai Shevantibai, they cannot afford a proper guide.

Coming to the cases of our own Court, the preponderance of authority seems to be in favour of the applicant. The decision in the case of Sri Kishan Lal, decided in 1913, is certainly not reconcilable with the earlier decision in the case of Hanuman Prasad in 1902. In a case which was decided in 1945, Aisha Begam v. Kundan Jan, to which one of us was a party, both these cases came up for consideration and it was held that it was difficult to reconcile the two decisions.

It remains to consider whether the decision of their Lordship of the Judicial Committee in Mirza Abid Husain Khan is really against the applicant. It is true that the value of the property affected by the annuity was more than Rs. 10,000, but the applicant, who was entitled to the annuity, was interested only in the annuity or property which could secure that annuity and no more. Here the applicant is interested directly in the whole of the enclosure, which is worth more than Rs. 10,000 and one of the reliefs claimed was a declaration that she was its sole owner. There is a reference to this point in the case of Sudaman Prasad when the learned Judges say that no appeal lies under section 110 unless the value of the loss or detriment which the applicant has suffered by the passing of the decree or order and from which he seeks to be relieved by His Majesty in Council is Rs. 10,000 or upwards.

I feel bound to say, however, that they did not pursue their observation to its logical conclusion. Possibly, they lost sight of the intention of the Legislature when it says that the order must involve not only directly but even indirectly a claim or question to property of the value of Rs. 10,000.

The view taken in the cases of Sri Kishan Lal and Nadir Husain appears to be warranted by the language of the statute than that taken in the Oudh cases relied upon by the learned counsel for the opposite party.

The case, therefore, fulfils the requirements of section 110(b) of the Code of Civil Procedure and 1 would so certify.

Verma, C.J:— I agree.

Per Curiam:— It is certified that, as regards amount or value, and nature, the case fulfils the requirement of section 110 of the Code of Civil Procedure.

Ram Devi v. Badlu Ram

Structured Summary of the Opinion (Sinha, J.) — Certification under Section 110, Code of Civil Procedure

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Opposite Party's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Devi v. Badlu Ram

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