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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. K.N Kntju and Messrs G.S Pathak and S.K Mukerji, for the appellant.
  • Messrs P.L Banerji and Panna Lal, for the respondent.
Judges
  • Sir Lal Gopal Mukerji
  • King, JJ.
Acts
  • Section 92, Civil P.C.,
  • Order 10, Rule 2
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. K.N Kntju and Messrs G.S Pathak and S.K Mukerji, for the appellant.
  • Messrs P.L Banerji and Panna Lal, for the respondent.
Judges
  • Sir Lal Gopal Mukerji
  • King, JJ.
Acts
  • Section 92, Civil P.C.,
  • Order 10, Rule 2
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff (now the appellant) sued for ejectment of the defendant from part of a house. The plaintiff alleged that the defendant had taken the premises on hire at a small rent, failed to pay rent and refused to quit despite notice to quit. The defendant's pleaded defences were (a) that he was an adopted son of the plaintiff (and therefore had the rights of a family member) and (b) that the house had been purchased out of the defendant's earnings, the implication being that the plaintiff had no exclusive title.

The Court of first instance (the Munsif) framed three issues: (1) whether the house belonged exclusively to the plaintiff or jointly to the parties; (2) whether the defendant's adoption by the plaintiff was valid; and (3) whether the defendant took the house on hire and, if so, at what rent. The Munsif found there was no valid adoption, held the house belonged to the plaintiff and that there was no hiring contract, and decreed the suit in favour of the plaintiff.

The defendant appealed to the Subordinate Judge. The Subordinate Judge's judgment departed from the Munsif in material respects and has been described in the opinion as controversial. The plaintiff then appealed to a learned Single Judge of this Court, but that appeal was dismissed mainly on the ground that it was concluded by a finding of fact and the appellant's counsel could not certify that there was no evidence to support that finding. A Letters Patent appeal (to the court delivering the present opinion) followed.

Legal Issues Presented

  1. Whether the house in suit belonged exclusively to the plaintiff or whether it belonged jointly to the parties and had been purchased with joint money (issue framed at trial).
  2. Whether the defendant was an adopted son of the plaintiff and whether such adoption, if alleged, was valid (issue framed at trial).
  3. Whether the defendant had taken the house on hire from the plaintiff and, if so, on what rent (issue framed at trial).
  4. Whether a point of law may be taken for the first time before a court of last resort (or in the High Court on appeal), i.e., whether a point of law not raised earlier can be entertained provided no fresh finding of fact is necessary (procedural question raised in the Letters Patent appeal).

Arguments of the Parties

Appellant's Arguments

  • The appellant advanced points on appeal that were not previously urged before the learned Single Judge (the opinion records that the learned Counsel for the appellant had urged a point which was not urged earlier).

Respondent's Arguments

  • The respondent's counsel argued that the point of law urged before this Court had not been urged before the learned Single Judge and therefore should not be entertained at this stage.
  • On one factual question the respondent (by Mr. Peare Lal Banerji) argued that the matter should be remitted to the lower appellate court to determine whether the relationship between the parties was that of partners (i.e., whether the property had been purchased out of "joint funds").

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Suraj Mal v. Triton Insurance Co. Ltd., A.I.R. 1925 P.C. 83 That a point of law may be taken for the first time before a Court of last resort and may be given effect to if no fresh findings of fact are necessary. The court relied on this precedent to support the proposition that a point of law raised for the first time in a higher court can be entertained provided the existing findings or admitted facts suffice for its decision.
Prem Narain v. Ram Charan, A.I.R. 1932 P.C. 51 That the want of a proper sanction by the Local Government could be taken for the first time before the Privy Council in a suit under Section 92, Civil P.C., even though the point had not been urged earlier. The court cited this decision to illustrate and reinforce the principle that procedural or jurisdictional points of law may be entertained at the highest level even if not previously raised.
Official Liquidator of M.E. Moolla & Sons Ltd. v. Perrin B. Burjorjee, A.I.R. 1932 P.C. 118 Approval of the rule that when a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy it is competent and expedient in the interests of justice to entertain the plea. The court quoted this passage (as approved by the Privy Council) to justify entertaining points of law raised for the first time when the facts are admitted or not in dispute.
Ram Kinkar Rai v. Tufani Ahir, A.I.R. 1931 All. 35 The Full Bench decision of the High Court had previously limited the points of law which could be taken for the first time in the High Court. The court treated this Full Bench decision as superseded by the Privy Council pronouncements and stated that it "must be deemed to be no longer good law" in the light of those higher authority decisions.

Court's Reasoning and Analysis

The court proceeded in two related strands of analysis: (A) procedural law about taking points of law at the appellate stage, and (B) the merits concerning ownership of the property and whether the defendant had an interest.

(A) Procedural law: The court observed the respondent's contention that a point of law urged before this court was not pressed previously before the learned Single Judge and therefore should not be entertained. The court reviewed authorities of the Privy Council (Suraj Mal; Prem Narain; Official Liquidator v. Perrin B. Burjorjee) and stated the principle that a point of law may be taken at any time provided that no fresh finding of fact is necessary for its decision. Where facts are admitted or findings are sufficient, a court of last resort is competent and, in the interests of justice, may entertain such a plea. On that basis the court held that the earlier local Full Bench limitation (Ram Kinkar Rai v. Tufani Ahir) must be deemed no longer good law.

(B) Merits and factual analysis: The court accepted that in a second appeal it must accept the Subordinate Judge's findings of fact so far as they were properly found. The court then examined the Subordinate Judge's treatment of the defendant's case. The defendant's pleaded contentions had shifted and included the claim that his earnings had been deposited with the plaintiff and that the house had been purchased out of those earnings (described in various parts of the record as a "blended fund" or "out of the joint funds").

The court concluded that the Subordinate Judge had "entirely misconceived" the defence when he characterized the arrangement as creating a joint-family or blended-fund ownership. The Subordinate Judge had himself held that there was no adoption and that the defendant had been brought up by the plaintiff and lived with him like a child. Crucially, the Subordinate Judge had also made a clear finding of fact that there was no definite evidence that the defendant had paid any part of the consideration for the purchase. On those factual findings the court reasoned that mere deposit of the defendant's separate earnings with the plaintiff did not, as a matter of law, convert purchases by the plaintiff into the defendant's property.

The court explained the legal principle applied: to infer an interest in the property from the mere fact of entrusted funds, there must be a legal relationship (such as a joint Hindu family or a partnership) that would make the act of one bind the other; or there must be evidence showing that the plaintiff acted as the defendant's agent or partner in the purchase. None of those relationships or evidentiary showings were found. The court therefore held that it was legally impermissible to infer ownership or a share in the property merely because the defendant's earnings had been kept by the plaintiff.

Finally, the court considered the respondent's submission (by Mr. Peare Lal Banerji) that an issue ought to be remitted to determine whether the parties were partners. The court declined to remit, stating that the defendant's statement about "out of the joint funds the property had been purchased" was part of the defendant's general case and was not a separate or independent plea justifying a fresh issue or remittal. The existing evidence, as the court heard and reviewed it, did not support treating the statement as establishing a partnership or joint fund that would alter ownership.

Holding and Implications

Holding: The court allowed the appeal. It set aside the decree of this Court (the learned Single Judge) and the decree of the learned Subordinate Judge, and restored the decree of the Munsif decreeing the plaintiff's suit for ejectment. The court also directed costs: the appellant to have costs in the Subordinate Judge's court and at the two hearings of this Court proportionate to his success, and to pay costs to the respondent in proportion to the latter's success.

Implications:

  • Direct effect on the parties: The plaintiff's (appellant's) decree for ejectment is restored, meaning the defendant must be ejected from the part of the house in suit as decreed by the Munsif. The specified allocation of costs governs the financial consequences of the litigation as between the parties.
  • Procedural implication: The court applied and followed Privy Council authorities to hold that points of law may be taken for the first time before a court of last resort when no fresh findings of fact are required. Consequently, a previous Full Bench ruling of this Court that had limited such points (Ram Kinkar Rai v. Tufani Ahir) is treated in the opinion as no longer good law. The decision thereby clarifies (within the scope of the opinion) that higher-court authority permitting first-time points of law takes precedence where facts or findings suffice to decide the point.
  • No new factual precedent was created about the ownership facts of this case beyond the direct holding; the court's factual conclusion was based on the lack of evidence that the defendant contributed to the consideration or that any legal relationship (joint family/partnership) existed to convert deposited earnings into ownership.
Show full summary ...

    Parbhu Lal v. Badri

    1. This is an appeal from the judgment of a learned single Judge of this Court and to appreciate our judgment it would be necessary to know the facts with some detail. The plaintiff who is the appellant before us brought the suit out of which this appeal has arisen for the ejectment of the defendant from a part of a house on the allegation that the defendant had rented the same from the plaintiff, on a small rent, and having not paid the rent was in arrear and had refused to quit the premises in spite of notice to quit being given to him. The defence was that the defendant was an adopted son of the plaintiff, that the plaintiff was old and unfit to do any work and that out of the earnings of the defendant the house had been purchased. The Court of first instance framed three issues, namely : (1) Whether the house in suit belongs exclusively to the plaintiff or does it belong jointly to the parties and was purchased by joint money? (2) Is the defendant an adopted son of the plaintiff and is his adoption valid? (3) Did the defendant take the house in suit on hire from the plaintiff? If so, on what rent?

    2. The Court found on issue 2 that there was no adoption at all and further found that the house belonged to the plaintiff having been purchased by him and that the defendant having lived for a long time with the plaintiff lived on the premises in the same way as he did before and that there was no contract of hiring. The learned Munsif decreed the suit on the ground that the property being the plaintiff's the defendant was bound to vacate it at the instance of the former. The defendant went up in appeal to the lower appellate Court and the judgment of the learned Subordinate Judge on appeal has been a matter of great controversy in this Court. We shall come to the judgment later on. The appeal came up before a learned Single Judge of this Court and it was dismissed mainly on the ground that it was concluded by a finding of fact and the counsel for the appellant was not in a position to certify that there was no evidence to support the finding. In this Letters Patent appeal the learned Counsel for the respondent has argued that the learned Counsel for the appellant has urged a point which was not urged before the learned single Judge and that there, fore we should not hear him. On this point, decisions of their Lordships of the Privy Council are conclusive. A point of law may be taken at any time, provided that for the decision of that point no fresh finding be necessary. If the facts admitted or if the findings of the Court be enough for the decision of the point of law, a Court is bound to hear it and if necessary, give effect to it. In the case, of Suraj Mal v. Triton Insurance Co. Ltd. A.I.R. 1925 P.C. 83, a point of law was taken for the first time before their Lordships of the Privy Council and was given effect to. Since then, there have been other decisions of their Lordships of the Privy Council and the practice of the English Courts is to the same effect. In Prem Narain v. Ram Charan A.I.R. 1932 P.C. 51, the want of proper sanction by the Local Government was allowed to be taken in a suit instituted under Section 92, Civil P.C., for the first time by their Lordships of the Privy Council though the point had never been urged in India. In the Official Liquidator of M.E. Moolla & Sons Ltd. v. Perrin B. Burjorjee A.I.R. 1932 P.C. 118, their Lordships quoted with approval the following from an English decision of the appeal Court:

    When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.

    3. In view of these Privy Council pronouncements, the Full Bench decision of this Court which limited the points of law which could be taken for the first time in the High Court must be deemed to be no longer good law : vide, Ram Kinkar Rai v. Tufani Ahir A.I.R. 1931 All. 35. Now, we take up the judgment of the learned Subordinate Judge whose findings of facts are to be accepted by us in second appeal. It appears that the defendant's case underwent change from time to time. We have already mentioned that his plea against the plaintiff's claim for ejectment was two-fold, namely, he was the adopted son of the plaintiff and, impliedly therefore bad such right in the house of the joint family as the plaintiff himself, and that the plaintiff had become incapable of earning and the property was purchased with defendant's own money. The last plea implied that the plaintiff had no interest whatsoever in the property in suit. When the statement of the parties was recorded under Order 10, Rule 2 the defendant stated that his earnings were kept with the plaintiff's and with this joint fund, the house, a part of which was in suit, had been purchased. The learned Subordinate Judge, in our opinion, entirely misconceived the defence when he formulated the same in his judgment in the following language:

    He further pleaded that he was depositing his earnings with the plaintiff and out of the blend* ed fund of the family this house was purchased....

    4. The learned Subordinate Judge found in agreement with the Munsif that the defendant had not been adopted by the plaintiff. He found that the defendant had been left by his mother as a mere child with the plaintiff, that the plaintiff brought up the defendant and that the defendant lived with him like his own child and messed with the plaintiff member of his family. He further found that it was the plaintiff who had rented a shop for the defendant to occupy and that it was the plaintiff who arranged for and defrayed the expenses of the defendant's marriage. Now, on these findings there could be no question of "blended fund of the family." It is possible that the learned Judge in stating the facts of the case was merely trying to put in a small compass the defendant's pleadings, but we fear that his idea that the defendant somehow or other was a member of a joint family with the plaintiff has coloured his judgment materially. The learned Subordinate Judge found as to the payment of the consideration as follows:

    On going through the evidence on this record, I have to agree with the learned Munaif that so far as the sale-deed goes, it does not indicate that the defendant had any share in it and that there was no definite evidence on behalf of the defendant that he paid any part of the consideration.

    5. This was a clear finding of fact that the defendant had failed to prove that lie had paid any part of the consideration money. The learned Judge then found that since the defendant began to earn, he handed over his earnings to the plaintiff and lived with the plaintiff. Having said so, the learned Judge remarked as follows:

    Though the plaintiff did not give a legal status to the defendants, both lived together like members of a joint family for a long time and it is almost impossible to say that the consideration of the deed came from the exclusive purse of the plaintiff.

    6. It is on the finding just quoted that great strees has been laid by the learned Counsel for the respondent as being conclusive of the case against the plaintiff. The learned Subordinate Judge admits that there was no question of the joint family between the parties. The fact then that the defendant's earnings were kept by the plaintiff with his own earnings would not make the coffers of the plaintiff the coffers of a joint Hindu family nor even the coffers of people who are partners in any venture. From the mere fact that the defendant's earnings are kept with the plaintiff, it would not follow as a matter of law that any purchase made by the plaintiff would also be the defendant's property.

    7. We have already pointed out that the learned Judge was not satisfied that there was any definite evidence that the defendant had paid any part of the consideration money. If that was so, it was wrong on the part of the learned Subordinate Judge to infer from the fact that the defendant's money was kept by the plaintiff with his own, that the defendant became the owner of the property. Some legal relationship must be shown which would entitle the defendant to claim the property on account of the only fact found that the money of the parties was kept by the plaintiff. Either the family must be joint or the parties must be in the position of partners so that the act of one may be the act for all the partners and it must be further shown that in the matter of purchasing a house the plaintiff was acting as a partner of the defendant.

    8. If it be true that the defendant has separate funds of his own and he deposits the same with the plaintiff, the purchase would not be for the benefit of the defendant even if it be a fact that, in making the purchase, the plaintiff, for want of sufficient funds of his own had to use for the time being the defendant's money. On the findings of the learned Subordinate Judge therefore it does not follow, indeed it is impossible to hold that the defendant has any interest in the property in suit.

    9. It was strongly argued on behalf of the respondent by Mr. Peare Lal Banerji that we should remit an issue to the lower appellate Court to find out whether the relationship between the parties was really not that of partners because the defendants stated in his examination that : "out of the joint funds the property had been purchased." We have not found it necessary to remit any such issue. We have heard the entire evidence of the defendant and we are of opinion that the statement quoted above was only a part of the defendant's general case. The statement was never meant to be a separate or independent plea raising an independent issue.

    10. The result is that the appeal succeeds. We set aside the decree of this Court and the decree of the learned Subordinate Judge and restore the decree of the Munsif decreeing the plaintiff's suit with proportionate costs. The appellant will have his costs in the Court of the Subordinate Judge and at the two hearings of this Court proportionate to his success and shall pay costs to the respondent in proportion to the latter's success.

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    Comments

    Parbhu Lal v. Badri
    (Feb 23, 1934)