Sahai, J.:— This appeal under clause 10 of the Letters Patent of the Patna High Court is directed against an order dated 10-9-1956, passed by Ramaswami, C.J, in Testamentary Case No. 1 of 1953 whereby he recalled his order dated 5-8-1955, and cancelled the direction given by him in that order.

2. It is necessary to mention the facts which are as follows: One Mahadeo Halwai died in October, 1951, leaving a two storeyed pucca house and certain premises in Holding No. 90 of Jugsalai, a suburb of Jamshedpur, as his only property. I will refer to these premises as the disputed house in the rest of this judgment. One Biliari Bania, claiming to be a brother of Mahadeo, applied along with others to the District Judge of Manbhum-Singhbhum for grant of letters of administration in respect of the estate of deceased Mahadeo. This application was dismissed on 2-4-1952. Bihari died on the 17th August of the same year. On the 3rd February, 1953, the Administrator General (who was then Mr. G.P Shahi) filed an application for grant of letters of administration to him in respect of Mohadeo's estate under Section 7 of the Administrator General's Act, 1913 (hereinafter to be referred to as the Act). This was registered as Testamentary Case No. 1 of 1953. Mewa Lal and others, claiming to be heirs of Mahadeo, filed an objection. They gave the following genealogical table in order to show their relationships with Mahadeo.

3. By his order dated the 4th August, 1953, Ramaswami, J., (as he then was) granted letters of administration to the Administrator General under S. 7, of the Act in respect of Mahadeo's estate, and, so far as the objection of the objectors was concerned, he observed:

“If the affidavit filed on behalf of the objectors is true and if Musammat Fulkalia is daughter of Biharj Bania and niece of Mahadeo Bania, it is undoubtedly open to her to file a proper application for letters of administration and obtain a grant. But no such grant has so far been obtained by Musammat Fulkalia and the application filed on behalf of the Administrator General of Bihar for grant of the letters of administration of the estate of Mahadeo Bania is competent.”

4. The Administrator General took possession on 30-8-1953, of the house left by Mahadeo. The appellant, Sardar Kartar Singh, appears to have negotiated with Musammat Phulkalia, her son Nath Ram and the sons of Duli for purchase of the disputed house, and they executed a registered agreement on 5-10-1953, to sell the disputed house to him for a consideration of Rs. 15,000/-. On the 19th November, 1953, he obtained a lease of the said house from the Administrator General on a monthly rental of Rs. 497/-. On the 16th January, 1954, Phulkalia filed an application before the District Judge of Manbhum-Singhbhum for grant of a succession certificate in respect of Rs. 900/- as arrears of rent due in respect of the disputed house from a certain tenant named Bishambhar Maharaj. A succession certificate was, accordingly, granted to her on the 20th April, 1954; but, before that date, i.e, on the 31st March, 1954, a sale deed in respect of the disputed house executed by her and other persons, who had joined her in executing the agreement to sell the house, was registered.

5. On 11-5-1954, the appellant wrote a letter to the Administrator General, informing him that Musammat Phulkalia had conveyed to him the property left by Mahadeo Halwai and requesting him to convey it to him as he was in possession. In the letter, he also undertook to meet all the costs of the conveyance and any proceeding that had to be undertaken for the purpose. Promptly, Mr. G.P Shahi, the Administrator General, filed an application on 14-5-1954, in Testamentary Case No. 1 of 1953, seeking directions of the Court under S. 28 of the Act to convey the properties of deceased Mahadeo to appellant Sardar Kartar Singh. This application came up before Ramaswami, J. who, by his order dated 5-8-1955, directed the Administrator General “to execute a fresh conveyance with regard to the house in question in favour of Sardar Kartar Singh”. This; was made subject to the condition that Sardar Kartar Singh paid the cost of hearing of the application as well as the cost of registration of the document to the Administrator General.

6. It was only a day before this order was passed, i.e, on 4-8-1955 that Mr. Katriar took over the office of the Administrator General, and Mr. Shahi, who vacated that office on 30-6-1954, had continued to look after the cases of the Administrator General up to that date. On 17-11-1955, Mr. Katriar filed an application for recall of the order dated 5-8-1955, on the allegation that order was obtained on some misstatements of facts. By his order dated 10-9-1956, the learned Chief Justice has allowed this application and has recalled his order of 5-8-1955.

7. Appearing on behalf of the Administrator General, the learned Government Advocate has taken the preliminary objection that no appeal lies against the order dated 10th September, and I propose first to consider this objection. A party cannot claim a right of appeal unless it is conferred upon him by statute. It is only if the order in question in this case can be held to be a ‘judgment’ within the meaning of clause 10 of the Letters Patent that this appeal can be entertained.

8. There are numerous decisions showing a great divergence of judicial opinion on the meaning and interpretation of the word ‘judgment’ in different clauses of the Letters Patent of different High Courts which are similar to clause 10 of the Letters Patent of this High Court.

9. In the Justices of the Peace for the Town of Calcutta v. The Oriental Gas Co. Ltd., 17 Suth WR 364 Couch, C.J said:

“We think that ‘judgment’ in Clause 15 means a decision which affects the merits of the question between the parties determining some right or liability. It may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined”.

10. A few years later, Sir Arnold White, C.J stated in Tuljaram Row v. Alagappa Chettiar, ILR 35 Madras 1:

“The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. It its effect, whatever its form may be, and whatever may be the nature or the application on which it is made is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.”

11. Delivering the judgment of their Lordships of the Judicial Committee in Sevak Jeranchod Bhogilal v. The Dakore Temple Committee, AIR 1925 PC 155, Sir John Edge observed:

“The term ‘judgment’ in the Letters Patent of the High Court means in civil cases a decree and not a judgment in the ordinary sense”.

12. In re Dayabhai Jivandas v. A.M.M Murugappa Chettiar, ILR 13 Rang 457 : (AIR 1935 Rang 267) (FB), Sir Arthur Page, C.J, has referred to the controversy which has raged round the interpretation of the word ‘judgment’, and has observed:

“I am of opinion that in the Letters Patent of the High Courts the word ‘judgment’ means and is a decree in a suit by which the rights of the parties at issue in the suit are determined.”

13. The meaning of the words ‘judgment or final order’ as used in Section 205(1) of the Government of India Act, 1935, arose for consideration in a criminal case before the Federal Court in Kuppuswami Rao v. The King, AIR 1949 FC 1. Kania, C.J, who delivered the judgment of the Court, stated:

“In our opinion, the term ‘judgment’ itself indicates a judicial decision given on the merits of the dispute brought before the Court.”

14. The question which arose for consideration in Asrumati Debi v. Kumar Rupendra Deb, AIR 1953 SC 198 was whether an order for transfer made under clause 13 of the Letters Patent of the Calcutta High Court was a judgment within the meaning of clause 15 thereof. It was held that such an order was not a judgment and hence not appeal-able. B.K Mukherjea, J., who delivered the judgment, referred to the controversy as to the interpretation of the word ‘judgment’ and said:

“……… it may be necessary for this Court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word ‘judgment’ as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts.”

15. The Supreme Court has thus left the question open.

16. In the case of G.L Nakphopha v. Administrator-General*) AIR 1955 Pat 56, the question was whether the order refusing to recall an order appointing the Administrator General as administrator pendente lite was a ‘judgment’ within the meaning of clause 10. It was held that such an order was not a judgment and hence it was not appealable. Narayan, J., with whom Imam, C.J agreed, referred to the judgment of Sir Arthur Page in ILR 13 Rang. 457 : (AIR 1935 Rang 267) (FB) (supra), and stated:

“I respectfully agree with the view of Page, C.J, that the Privy Council has held at least in three cases that the term ‘judgment’ in the Letters Patent of the High Court means decree’ and not ‘order’. Undoubtedly, an appeal is the creature of a statute and does not exist in the nature of things. Unless there is an express enactment giving a right of appeal from any decision of a tribunal, no appeal can lie. As Page, C.J, pointed out, ‘a final judgment is a decree in a suit by which all the matters at issue therein are decided. A preliminary or interlocutory judgment is a decree in a suit by which the right to the relief claimed in the suit is decided, but under which further proceedings are necessary before the suit in its entirety can be determined.’ All other decisions should be regarded as orders and cannot be regarded as judgments within the meaning of the expression it has been used in the Letters Patent.”

17. I do not consider it necessary to refer to other cases or to enter into the controversy as to the, meaning and interpretation of the word ‘judgment’ in clause 10 of the Letters Patent, nor is it necessary for me to attempt to define that word exhaustively. It seems manifest, however, that the word connotes a judicial decision on the merits of the dispute between the parties as stated by Kania, C.J, in Kuppuswami Rao's case, AIR 1949 FC 1. This means that, whatever else may or may not be necessary, there must be (1) an adjudication and (2) a determination of the rights or liabilities of the parties with regard to any of the matters at issue between them.

18. The learned Government Advocate pointed out that, according to section 56 of the Act, an order made by any Court under that Act is to have the effect of a decree; but he has argued that this does not mean that all orders, whatever their nature must be treated as decrees for all purposes. His contention is that an order passed under the Act only have the effect of a decree if it determines any right or liability and that the section merely means that such an order will be enforced as a decree. It does not mean that every order passed under the Act should be treated to be a judgment for the purposes of appeal under clause 10 of the Letters Patent. In my opinion, his arguments are well founded. It is unnecessary to discuss the interpretation of the section any further because Mr. Das has conceded that an order passed under any provision of the Act or otherwise cannot be held to be a judgment within the meaing of clause 10 of the Letters Patent unless it determines any right or liability.

19. Mr. Das has admitted that ordinarily an order giving direction to the Administrator General under S. 28 of the Act does not create any right in favour of any one, and hence it is not a judgment as contemplated by clause 10. He has contended, however, that the order dated the 10th September is appealable because it recalls the order dated the 5th August by which a right was created in favour of the appellant to get the Administrator General to execute a deed of sale in his favour after complying with the conditions laid down in that order. He has urged that there was already conveyance executed by the alleged heirs of Mahadeo in respect of the disputed house, and it was on the express request of the appellant that the Administrator General filed his application on the 14th May for necessary directions to sell the house to him. His submission is that, in view of these facts, the appellant obtained the right to get a conveyance from the Administrator General, and that he could enforce it, if necessary, by a proceeding for contempt of Court against him. In my opinion, there is no substance at all in these arguments because it is manifest that the order dated the 5th August did not create any right in favour of the appellant.

20. Section 28 of the Act empowers the High Court to give general or special directions to the Administrator General “as to any estate in his charge or in regard to the administration of any such estate”. The words used in Section 302 of the Indian Succession Act, 1925, which empowers the High Court to give directions to the executor or administrator appointed by it, are the same. Section 34 of the Indian Trusts Act, 1882, is in similar but not identical terms, and it enables a trustee to seek the opinion, advice or direction of the principal Civil Court. I do not think that either Section 28 of the Administrator General's Act or Section 302 of the Indian Succession Act contemplates any adjudication on the rights or liabilities of any party concerned. These sections appear to have been enacted for the purpose of enabling the Administrator General, executor or administrator to obtain a direction of the High Court if he feels any doubt as to any matter relating to administration or disposal of the estate in his charge. Although a person other than the Administrator General, executor or administrator can also apply under S. 28 of the Act and Section 302 of the Indian Succession Act, it seems to me that the High Court cannot, while giving advice or opinion in the shape of directions to the Administrator General, executor or administrator concerned, adjudicate upon any disputed question relating to any right or liability. This view receives support from the following observations of P.B Mukharji, J. in the goods of Akshoy K. Ghose, deceased AIR 1949 Cal 462 who was dealing with Section 302 of the Indian Succession Act:

“In my opinion, S. 302 should not be read in such a way as to make this section in the statute a substitute for a suit in any and every case relating to the estate or its administration. The Legislature uses the word ‘directions’ which in my judgment should receive a construction consonant to the ordinary meaning of that word. The word ‘directions’ does not in my view mean adjudication and determination of substantive rights, but they mean in my judgment directions to help the executors in the difficulties in respect of practical management or administration where no disputed question of title or difficult question of construction of will or complicated questions of law are involved”.

21. Similar views have been expressed by Ramaswami, J. of the Madras High Court in Ramamurthy v. President, Attur Co-operative Society, Attur (S) AIR 1935 Madras 417 in which Section 302 of the Indian Succession Act was in question and Gyanambal v. Administrator General of Madras (S) AIR 1955 Mad 419 in which Section 28 of the Administrator General's Act was itself to be considered. In the latter case, he has observed:

“The analysis of this case law is that the questions on which the Court has advised the trustees or persons beneficially interested, related strictly to undisputed matters of management such as questions of advancement, maintenance, changes of investments, sale of a house, compromise and taking proceedings. But disputed points of law or fact or questions of detailed difficulty or importance have never been included”.

22. It is, therefore, clear that the direction given by the learned Chief Justice in his order dated the 5th August cannot be treated either as an adjudication or as an order creating a right in favour of the appellant. The fact that he took a sale deed in respect of the disputed house from the alleged heirs of Mahadeo was a matter entirely between him and them. He did request the Administrator General to execute a sale deed in his favour in respect of that house; but there was no agreement between them ???

23. In any case, the Administrator General merely asked in his application of the 14th May, 1954, for a direction, and, when the matter came up before the Court, the appellant was not in the picture; the matter was between the Administrator General and the Court. There was no controversy or dispute which required adjudication. It is manifest that the order of the 5th August cannot, therefore be held to have conferred any right which the appellant could enforce against the Administrator General. Mr. Das has not argued that the order dated the 10th September is by itself appealable; but he has argued that it appealable because it recalls an order, i.e, the order dated the 5th August, which created a right in tin appellant's favour. In view of my conclusion that the order of the 5th August did not create any right in favour of the appellant, it is perfectly clear that the order dated the 10th September is not a judgment within the meaning of clause 10 of the Letter Patent. The preliminary objection taken by the Government Advocate must, therefore, prevail, and it is held that this appeal is not maintainable.

24. I propose now to discuss and give my conclusions on the merits of the case also because we have heard arguments from both sides on the merits. The learned Chief Justice has recalled his order dated the 5th August on the ground that several misstatements of facts, though innocent, were made to him and he passed that order on their basis. He has stated:

“If all the relevant facts had been disclosed, a they are now disclosed, I would certainly not have passed the order dated the 5th of August, 1955, on permitted the Administrator General to execute a fresh conveyance of the disputed house in favour ??? Sardar Kartar Singh:

25. The alleged misrepresentations consist mostly of omission to state some important facts. The first such fact is that the then Administrator Genera failed to bring the notice of the Court that under the order dated the 4th August, 1953, the objection of the alleged heirs of Behari and Mahadeo was overruled and it was said that it was open to Phulkalia, if she was truly the daughter of Behari, “to file a proper application for Letters of Administrator and obtain a grant”. The Administrator General stated in his application of the 14th May that Phulkalia had secured a succession certificate “in the matter of the estate of the deceased”. Mr. Das has argued that this statement does not amount to ??? misrepresentation because the Administrator Genera filed the succession certificate itself as annexure A to his application, and that certificate clearly show that it was granted in respect of a sum of Rs. 900/- alleged to be due as arrears of rent for the disputed house. It is true that a copy of the succession certificate was filed along with the application, but; Court does not always look into all the papers on the record when Advocates, who are expected to bring all material facts to the notice of the Court appear in a case. The Administrator General could easily have said in the application itself that the certificate was granted in respect of a certain amount as arrears of rent. Even if he omitted to do so, he could have mentioned this fact in the course of his argument; but it is obvious that he did not do ??? because Ramaswami, J. (as he then was) has stated as a fact in his order of the 5th August that “Mussamat Fulkalia applied to the District Judge of Manbhum Singhbhum for succession certificate with regard to the house” and the Disrtict Judge granted it.

26. It is, therefore, perfectly clear that the then Administrator General gave an entirely wrong impression to the Court by stating that the succession certificate was granted in respect of the disputed house.

27. Another glaring fact is that the disputed house appears to be rather valuable. In an objection petition filed in Testamentary Case No. 1 of 1953 on the 13th May, 1953, Mewa Lal and others stated that the value of the property was one lac of rupees. The Collector valued it at Rs. 55,000/-, and, on that basis, the Administrator General had to pay a duty of Rs. 2,200/-. The fact that the appellant himself took a lease of the house from the Administrator General on a monthly rental of Rs. 497/- itself shows that Rs. 15,000/- is a grossly inadequate price for it. Nothing about the approximately real value of the house has been mentioned by the Administrator General in the application of the 14th May; nor does it appear that he mentioned it before Ramaswami, J. when the matter was taken up by him.

28. Mr. Das has argued that it was for the vendors to consider the price and it was open to them to sell their property at an extremely low figure. He has submitted that adequacy or inadequacy of the consideration was not a matter for the Court. In my opinion, there is no substance in these arguments. Although Mr. G.P Shahi, as Administrator General, appears to have admitted the genealogy propounded by Phulkalia and others as shown by the order of the 5th August, there is nothing to show that he had any personal knowledge on this point. There is also nothing to show that the alleged heirs have proved their relationship with Mahadeo Bania in any Court of law. They would have been required to prove it before Letters of Administration could be granted to any of them; but none of them has yet obtained any Letters of Administration.

29. The legal position is that, in view of Ss. 7 and 24 of the Administrator General's Act read with Ss. 220 & 307 of the Indian Succession Act, title to the disputed house is vested in the Administrator General. The conveyance by the alleged heirs of Mahadeo to the appellant has, therefore, no legal effect. Before directing the Administrator General to sell the disputed house, it was necessary for the Court to be satisfied that the consideration for which the Administrator General prayed for direction to sell it was adequate. It was, therefore, necessary for the Administrator General to point out all relevant materials about its value to the Court. It seems manifest that the appellant is trying to take very unfair advantage of the alleged heirs of Mahadeo by getting them to sell the house for such a low rice that it shocks the conscience. The Administrator General should have been vigilant and astute enough to see that he or the Court did not become party to an act of such unfairness.

30. Admittedly, the disputed house comprises he only property left by Mahadeo. If the Administrator General sells it, the entire administration would wound up. Section 19 of the Act reads:

“If any letters of administration granted to the Administrator General in accordance with the provisions of this Act are revoked, the Court may order the costs of obtaining such letters of administration, and the whole or any part of any fees which would otherwise have been payable under this Act, together with the costs of the Administrator General in any proceedings taken to obtain such revocation, to be aid to or retained by the Administrator General out of the estate; Provided that nothing in this section shall affect the provisions of clause (c) of sub-section (2) of S. II”.

31. An order for winding up of an administration cannot properly be made while giving directions under S. 28, and, in any case the fees paid and costs incurred by the Administrator General in obtaining the letters of administration had to be ordered to be retained by the Administrator General from out of the estate. The then Administrator General's act in not bringing all material facts to the notice of the Court led it to give unwittingly a direction which it would not have given if the necessary facts had been known. There was also no direction for payment by the appellant of Rs. 2,200/- which the Administrator General had paid as duty or for payment of the costs incurred by him in obtaining the letters of administration.

32. Mr. Das has conceded that this Court can alter directions given by it under S. 28 if they are given on wrong assumptions of facts provided that no right is vested in any one as to result of the directions having been carried out. The direction given under the order of the 5th August has not been carried out and no right has vested in any one. It is clear that the then Administrator General did not place all material facts and also made a positive misstatement by stating that the succession certificate was obtained in the matter of the estate of Mahadeo. As a result, the Court was misled. If wrong impressions had not been given, the Court could not have given the direction which it did by the order of the 5th August. In my judgment, therefore, the learned Chief Justice has rightly recalled that order by his order under appeal.

33. For the reasons given above, the appeal fails and it is dismissed with costs; hearing fee Rs. 250/-.

34. Untwalia, J.:— I entirely agree.

V.B.B

35. Appeal dismissed.