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Ram Baran Prasad v. Ram Mohit Hazra And Others
Factual and Procedural Background
This opinion arises from an application for a certificate under clauses (b) and (c) of Article 133(1) of the Constitution against a judgment of a Division Bench dated November 18, 1959, which affirmed a decree of the Subordinate Judge, 5th Court, Alipore. The suit involved a declaration by the plaintiffs (the Hazras) claiming entitlement to pre-emption rights over a disputed property, and sought a decree compelling defendant No. 2 to convey the property upon payment of consideration. The property originally belonged to two brothers, Kishori and Tulsi, who had partitioned it by decree dated March 15, 1941, with a clause for mutual pre-emption rights. Tulsi sold his share (lot A) first to Nagendra, who subsequently sold it to Hamid, and then to the petitioner (defendant No. 2). The plaintiffs, stepping into Kishori’s shoes, instituted the suit on December 2, 1952, before the final transfer to the petitioner. The trial court and the Division Bench upheld the plaintiffs’ claim, and the petitioner sought to appeal to the Supreme Court, necessitating this application for a certificate under Article 133(1).
Legal Issues Presented
- Whether the case satisfies the valuation test required under Article 133(1) for granting a certificate.
- Whether the case involves a substantial question of law warranting a certificate under clause (b) or clause (c) of Article 133(1).
- Whether the petitioner can be granted a certificate under clause (b) or clause (c) of Article 133(1) for appealing to the Supreme Court.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Surendra Nath Roy v. Dwarka Nath, ILR 44 Cal 119 (AIR 1917 Cal 496) | Determining the material date for valuation under clause (b) of Article 133(1) as the date of the decree sought to be appealed. | The Court relied on this precedent to direct an enquiry into the value of the subject-matter as of the date of the Division Bench judgment (November 18, 1959). |
| A.V Subramania Ayyar v. Sellammal, ILR 39 Mad 843 (AIR 1916 Mad 985) | Interpretation that clause (b) of Article 133(1) requires the decision to affect claims or property other than the subject-matter of the suit. | The Court applied this principle to hold that since the decision did not affect other property, clause (b) did not apply. |
| Md. Nural Absar v. Haripada Biswas, 50 Cal WN 255 | Affirmation of the interpretation of clause (b) of Article 133(1) requiring the decision to affect other property. | The Court followed this precedent to support its view on clause (b) applicability. |
| Udoychand Pannalal v. P.E Guzdar and Co., 52 Ind App 207 (AIR 1925 PC 159) | Interpretation of the meaning of "property" in Section 110 of the CPC, emphasizing the difficulty of precise definition and the need for the issue to involve other property. | The Court cited this to reinforce that the suit did not involve other property and thus clause (b) was not applicable. |
| Banarsi Prasad v. Kashi Krishna Narain, L.R 28 Ind App 11 | Standards for granting certificates under clause (c) of Article 133(1) requiring questions of public or private importance. | The Court referred to this precedent to determine that the substantial question of law raised was not of sufficient importance to warrant a certificate under clause (c). |
| Radhakrishna Ayyar v. Swaminatha Ayyar, 48 Ind App 31 (AIR 1921 PC 25) | Criteria for issuing certificates under clause (c) of Article 133(1) based on public or private importance. | The Court applied this to conclude the case did not meet the threshold for a certificate under clause (c). |
Court's Reasoning and Analysis
The Court first addressed the valuation question. It accepted the petitioner’s concession that clause (a) of Article 133(1) did not apply due to the initial suit’s valuation being below Rs. 20,000. The petitioner relied on clause (b), contending that valuation should be fixed as of the date of the decree appealed from. The Court ordered an enquiry under Order XLV, Rule 5 of the CPC, which resulted in a valuation exceeding Rs. 40,000 as of November 18, 1959.
However, the Court held that clause (b) requires that the decision affect claims or property other than the subject-matter of the suit. Since the decision only concerned the property in dispute, clause (b) did not apply. This interpretation was grounded in precedents emphasizing that clause (b) cannot render clause (a) nugatory by allowing appeals solely on valuation without distinct claims.
The Court then considered clause (c), which permits certification for substantial questions of law of public or private importance. The petitioner’s proposed question was whether the pre-emption covenant could be enforced against subsequent transferees of Nagendra, who had acquired title after refusal by Kishori. The Court acknowledged this as a substantial question of law but found it did not rise to the level of importance required for a certificate under clause (c), based on established Judicial Committee decisions.
Other questions raised by the petitioner were deemed insufficiently significant for certification. Consequently, the Court declined to grant the certificate under either clause (b) or clause (c).
Holding and Implications
The Court dismissed the application for a certificate under clauses (b) and (c) of Article 133(1) of the Constitution.
The immediate effect is that the petitioner is not entitled to appeal to the Supreme Court against the Division Bench judgment. The Court did not set any new precedent but applied established principles to deny certification, emphasizing the strict interpretation of valuation and substantiality requirements under Article 133(1).
Lahme, C.J:— This is an application for a certificate under clauses (b) and (c) of Article 133(1) of the Constitution against a judgment of a Division Bench, of this Court dated November 18, 1959 (reported in AIR 1961 Cal 152) affirming the judgment and decree of the Subordinate Judge, 5th Court, Alipore. The petitioner before us is defendant No. 2. The suit out of which this application arises was one for a declaration that the plaintiffs respondents, who may be collectively called the Hazras, were entitled to pre-emption and that defendant No. 2 was bound to convey the disputed property to the plaintiffs on payment of actual consideration and for a decree for pre-emption against the defendant calling upon him to execute a conveyance in favour of the plaintiffs on payment of consideration. The suit was decreed by the Court of first instance and an appeal to this Court against that decree has failed. The defendant No. 2 now intends to take a further appeal to the Supreme Court against the judgment of the Division Bench of this Court. The facts which are material for the purpose of the present application are these. The property in dispute which consists of 4 cottas, 11 chhitaks and 2 sq. ft. of land with a partly one storeyed and partly two storeyed building standing thereon belonged to two brothers named Kishori and Tulsi. As a result of a suit for partition between the two brothers, there was a decree on an award and the date of that decree is March 15, 1941. The Arbitrators divided the subject-matter of dispute between the two brothers into four allotments and they awarded lots B and D to Kishori and A and C to Tulsi. In the award there is a clause for pre-emption in the following terms:
“We further find and report with the consent of and approval of the parties that any party in case of disposing or transferring any portion of his share, shall offer preference to the other party, that is each party shall have the right of pre-emption between each other.”
2. It has been found by the trial Court and also by the Division Bench of this Court that on August 26, 1941, Tulsi sold lot A to one Nagendra for Rs. 6,500/-. It has also been found that before this sale Tulsi made a prior offer to Kishori, but Kishori refused to purchase and thereupon Tulsi sold the property to Nagendra. On September 20, 1952, Nagendra sold lot A to one Hamid for Rs. 14,000/-. On April 7, 1953 Hamid sold lot A to the present petitioner for a sum of Rs. 15,000/-. The suit out of which this application arises was filed by the plaintiffs in the Court of the 5th Subordinate Judge on December 2, 1952, about four months before the sale to the petitioner. This is the chain of transfers by which the property came to be acquired by the present petitioner. On the side of the plaintiffs also there was a similar chain of transfers. On April 22, 1942 Kishori sold lots B and D to certain persons who are collectively described as the Mukherjees for a sum of Rs. 10,000/- and on June 21, 1946, the Mukherjees sold lots B and D to the present plaintiffs for a sum of Rs. 16,250/-. The plaintiffs thereafter stepped into the shoes of one of the cosharers, Kishori, and the defendants stepped into the shoes of Tulsi. As I have already said, on December 2, 1952, the plaintiffs instituted the suit out of which this application arises for enforcing the pre-emption clause incorporated in the decree for partition upon award.
3. As the judgment sought to be appealed from is one of affirmance, the three questions which arise for our consideration are: (a) whether the case satisfies the valuation test, (b) whether the case involves a substantial question of law and (c) if the case does not come under Article 133(1)(b) whether we can certify it to be a fit case under clause (c) of Article 133(1). I shall take these questions one by one. The question of valuation was raised before this Court on June 10, 1960. On that date the petitioner conceded before us that he did not press his claim under Article 133(1)(a) of the Constitution, but pressed his claim under clauses (b) and (o) of Article 133(1). Under clause (b) the contention that was put forward on behalf of the petitioner on that date was that in order to come under clause (b) all that was necessary was to satisfy us that the case satisfied the valuation test on the date on which this Court delivered its judgment. The Division Bench of this Court which decided the appeal delivered its judgment on November 18, 1959. The petitioner contended that the material date for determining the value of the ‘property’ under clause (b) of Article 133(1) was the date of the decree sought to be appealed from. In support of that proposition the petitioner relied upon a judgment of a Division Bench of this Court in the case of Surendra Nath Roy v. Dwarka Nath, Chakravarti, ILR 44 Cal 119 : (AIR 1917 Cal 496). Relying upon that decision this Court by a judgment dated June 10, 1960, directed the trial Court to hold an enquiry under Order XLV, Rule 5 of the CPC as to the value of the subject-matter in dispute on November IS, 1959, that is the date on which this Court pronounced its judgment in the appeal filed by the petitioner. The question whether the petitioner was entitled to a certificate under clause (b) or clause (c) of Article 133(1) was left open for further consideration after the receipt of the valuation report by the trial Court. In pursuance of the aforesaid order, the trial Court has sent a valuation report according to which the value of the subject-matter in dispute on November 18, 1959 was Rs. 18,000/-. Both sides have filed objections to the valuation report made by the trial Court. According to the petitioner the valuation is in excess of Rs. 20,000/- whereas according to the respondents the valuation is less than Rs. 18,000/-. (After discussing the evidence, His Lordship concluded:) Adding the value of the land to the value of the structures, I hold that the true value of the subject-matter of dispute on November 18, 1959 exceeds Rs. 40,000/-.
4. The question, however, still remains whether in spite of this finding on the question of valuation we can grant the certificate under Article 133(1)(b) of the Constitution. After hearing learned Advocate on both sides at some length, I have reached the conclusion that we cannot. Clause (a) of Article 133(1) of the Constitution requires that the value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal to the Supreme Court was and is not less than twenty thousand rupees, whereas according to clause (b) the material date is the date of the decree sought to be appealed from. In a case under clause (b) therefore all that the petitioner is required to prove is that the amount or value of the subject-matter of dispute still in dispute on appeal is not less than twenty thousand rupees. In the present case clause (a) cannot evidently apply because the value of the subject-matter of the suit in the Court of first instance was Rs. 14,000/- according to the revised valuation made by the trial Court, and the petitioner does not, therefore, press his claim under clause (a). In order to come under cl. (b), however, it is necessary for the petitioner to prove that the decision complained of affects directly or indirectly some claim or question respecting property which is not the subject-matter of the suit. Unless the decision affects a claim or property other than the claim or property in dispute, clause (b) does not come into operation. Otherwise, the provisions of Clause (a) of Article 133(1) of the Constitution would be rendered altogether nugatory. This is the view which has been taken in the case of A.V Subramania Ayyar v. Sellammal, ILR 39 Mad 843 : (AIR 1916 Mad 985), which has been followed by a Division Bench of this Court in the case of Md. Nural Absar v. Haripada Biswas, 50 Cal WN 255. This view also receives some support from a decision of the Judicial Committee in the case of Udoychand Pannalal v. P.E Guzdar and Co., 52 Ind App 207 : (AIR 1925 PC 159), where in construing the meaning of the word ‘property’ in the second paragraph of Section 110 of the CPC. Lord Dunedin made the following observations:
“Their Lordships are not inclined to attempt any precise definition of the word ‘property’. The Civil Procedure Code has not done so, and any definition might not be found in the future precisely to fit the circumstances which the kaleidoscope of actual experience may produce. But they think that the present is not a case where the issue of this suit can be said directly or indirectly to involve other property.”
5. As the decision complained of in this case does not directly or indirectly affect any claim or property other than the subject-matter of the suit, I am unable to hold that the petitioner is entitled to a certificate under Article 133(1)(b) of the Constitution.
6. The next question which requires consideration is whether the petitioner is entitled to a certificate under Article 133(1)(c) of the Constitution. The point which the petitioner proposes to raise before the Supreme Court is this. The first transfer to Nagendra having been made alter refusal by Kishori, the first transfer remains a valid transfer. The covenant for pre-emption can no longer be enforced against Nagendra and since the covenant cannot be enforced against Nagendra, it cannot also be enforced against the subsequent transferees of Nagendra, namely, defts Nos. 1 & 2.
7. In other words, if Nagendra has acquired a title free from the claim for pre-emption, he can pass that title to his subsequent transferees. This point certainly raises a question of law and I am prepared to say that it is also a substantial question of law. But I am unable to hold that although it is a substantial question of law, it is a question of such public or private importance as to entitle us to grant a certificate under clause (c) of Article 133(1) in the light of the decisions of the Judicial Committee in the case of Banarsi Prasad v. Kashi Krishna Narain, L.R 28 Ind App 11 or of Radhakrishna Ayyar v. Swaminatha Ayyar, 48 Ind App 31 : (AIR 1921 PC 25).
8. Besides the question which I have formulated above, there are also other questions, involved in the appeal. But as they are not, in my opinion, of such a character as to make the case a fit case for a certificate under Article 133(1)(c), I need not refer to those points for the present purpose.
9. In the result, I am unable to grant the certificate asked for by the petitioner either under clause (b) or under clause (c) of Article 133(1) of the Constitution.
10. I would, accordingly, dismiss the application, but, in the circumstances of the case, I would make no order as to costs.
11. No separate orders are necessary on the applications objecting to the report regarding valuation.
Bachawat, J.:— I agree.
EE/L.B
12. Application dismissed.
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