Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mukerji
  • A.C.J
  • S.K Ghose, J.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mukerji
  • A.C.J
  • S.K Ghose, J.
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an application for leave to appeal to His Majesty in Council from a decree made by this Court on a first appeal. The underlying suit was for partition of certain properties; the plaintiffs claimed a half share and also sought accounts. The Subordinate Judge declared the plaintiffs' share to be one-third after excluding certain properties he found had already been partitioned, and ordered accounts for a specified period. Of the properties on which he decreed partition, some items were ordered to be kept joint and others to be partitioned by metes and bounds.

On appeal, this Court (on an appeal by plaintiff 1 and a cross-objection by plaintiff 2) varied the trial Court's decree by dismissing the appeal save and except that it ordered partition by metes and bounds of all properties found to be joint. Plaintiff 1 is the applicant seeking leave to appeal to His Majesty in Council (the Privy Council).

Legal Issues Presented

  1. Whether the decree of this Court is to be treated as a "decree of affirmance" for the purpose of leave to appeal to His Majesty in Council (with reference to the interpretation of the relevant provision, including S. 110 and para. 3 as discussed in the opinion), and consequently whether the applicant must show that the appeal involves some substantial question of law despite the subject-matter value being over Rs. 10,000.
  2. Whether there exists a substantial question of law in the proposed appeal on the substantive dispute between the parties about ownership: specifically whether the properties belonged to Hari Nath (entitling plaintiffs to half) or to his wife Jagatmohini (entitling plaintiffs to one-third).
  3. Related subsidiary legal questions arising from the applicant's grounds: the correctness of the placement of the onus of proof; the effect of properties standing in Mohendra's name; the legal effect (if any) of Jagatmohini's possession as guardian under Act 40 of 1858 and any resulting fiduciary obligations/estoppel; the inferences to be drawn from alleged family arrangements; and whether part performance, limitation, adverse possession or estoppel affect title.

Arguments of the Parties

Applicant / Appellant (Plaintiff 1) — Main Contentions

  • Relies on the decision reported as 1925 P.C. 601 (also referenced in the opinion as 1925 P.C. 60) to contend that the decree of this Court is not a decree of affirmance; therefore he argues it is unnecessary to show a substantial question of law and that he is entitled to leave as of right because the subject-matter exceeds Rs. 10,000.
  • Contends that the onus of proof has been wrongly placed upon the plaintiffs, and that the burden of proof is not uniform across all items of property.
  • Argues that properties standing in Mohendra's name should give the plaintiffs (as heirs of Mohendra) a larger share; implicitly disputing findings that Mohendra was merely a benamdar.
  • Asserts that Jagatmohini, having taken possession as guardian under Act 40 of 1858, occupied a fiduciary position and could not divest that position without transferring possession to beneficial owners and being discharged; hence defendants claiming through her should be estopped from asserting title.
  • Maintains that the facts do not warrant inferring a family arrangement (or that a dispute sufficient to justify such an arrangement was proved).
  • Argues that mere long-standing conduct under a family arrangement does not change title unless limitation, adverse possession for the statutory period, or an estoppel applies; asserts that such extraneous incidents are absent in this case.

Respondents / Other Parties — Summarised Position

  • The defendants' case, as summarized in the opinion, is that the properties belonged to Jagatmohini and therefore the plaintiffs' share amounted to only one-third (contrary to the plaintiffs' claim of one-half).
  • Impliedly, the respondents accept or rely upon findings that Mohendra acted as a benamdar (nominee) for either Hari Nath or Jagatmohini and that the plaintiffs did not claim as Mohendra's heirs.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
1925 P.C. 601 Relied upon by the applicant to argue that a High Court decree which varies the trial court's decree is not a "decree of affirmance", and therefore leave should not be withheld where the subject-matter exceeds Rs. 10,000. The Court acknowledged the force of the contention if the applicant's reading of that decision were accepted, but noted that it has refused to break away from a long course of Indian decisions which require a substantial question of law where the appellate Court has modified the original decree on a point in the applicant's favour.
1925 P.C. 60 Same decision referenced elsewhere in the opinion (used by both sides in the debate); seen as potentially limiting the "affirmance" concept when applying S. 110 of the Code with regard to appeals to the Privy Council. The Court treated any expansive application of this decision cautiously and indicated that it preferred the narrower reading endorsed by Rankin, C.J., until a clearer pronouncement by the Judicial Committee.
8 C.W.N. 2946 (and 8 C.W.N. 294 referenced) Discussed in context where a trial award was increased by the High Court; addressed whether the decree to be appealed from should be regarded as a decree of affirmance when subject-matter in dispute before the Privy Council was one on which both lower Courts had been agreed. The opinion notes that the particular application of the principle in this report must be taken to have been overruled by the Judicial Committee in 1925 P.C. 60 (as understood by the Court in this opinion).
1928 Pat. 6092; 1929 Pat. 5613; 1932 Mad. 464; 1933 Pat. 2625 These decisions are cited as holding that unless the High Court's decree is in its entirety an affirmation of the trial Court's decree, leave cannot be withheld if the monetary requirement is satisfied (i.e., an expansive reading of 1925 P.C. 60). These cases were acknowledged by the Court as supporting the applicant's contention, but the Court did not adopt that position; instead it preferred a more restrictive approach.
1927 Cal. 5437 (Rankin, C.J.) Held that 1925 P.C. 60 is not in itself sufficient to abandon the principle that one must look to the substance and the subject-matter of the appeal to His Majesty in Council when construing the relevant provision. The Court indicated agreement with Rankin, C.J.'s view and stated a preference to adhere to that approach until the Judicial Committee gives a more definite pronouncement.
1932 Nag. 1188 Stated that a modification of a decree of a lower Court consisting of a pecuniary modification in the appellant's favour (on a matter to be debated before the Privy Council) amounts to a variation of the trial Court's decree, but that the appellant cannot appeal on grounds unconnected with those on which he succeeded. The opinion cites this as an example of decisions adopting the restrictive view that a successful variation on a particular point does not entitle the appellant to litigate other points on which the Courts agreed without showing a substantial question of law.
1930 Lah. 1029 Leave refused where the appellate variation was considered not substantial (trial decree for Rs. 13,000 was varied by a conditional order). The Court notes this case as an instance where leave was refused because the variation was not regarded as substantial.
1932 All. 6510 (Special Bench, Allahabad High Court) Adopted the view that 1925 P.C. 60 supports the proposition that any variation of the decree of the Court below — however small — prevents the High Court's decree from being treated as a decree of affirmance. The opinion records this decision as taking the contrary view to the Court's preferred approach, but does not adopt it.

Court's Reasoning and Analysis

The Court proceeded in two main stages: first, it analyzed the legal question whether the present appellate decree should be treated as a "decree of affirmance" for the purpose of leave to appeal to His Majesty in Council; second, it examined whether the proposed appeal raised any substantial question of law.

On the question of "decree of affirmance" the Court examined conflicting authorities. The applicant relied heavily on the Judicial Committee's decision reported as 1925 P.C. 601 (also cited as 1925 P.C. 60) to argue that any variation by the appellate Court takes the case out of the affirmance category when the subject-matter exceeds Rs.10,000. The Court recognized there was force in that contention if the applicant's reading of the Privy Council decision were accepted in full. However, the Court observed a long course of Indian decisions holding that where an appellate Court modifies the original decree on a single point and that modification fully satisfies the applicant on that point, the applicant cannot, by virtue of that modification alone, claim a right of appeal on other points on which both Courts were in agreement without showing a substantial question of law.

The Court referred to Rankin, C.J.'s position (1927 Cal. 5437) and related authorities and expressed the view that the narrower reading of 1925 P.C. 60 was preferable. The Court stated that 8 C.W.N. 294 (and related reports) had applied a different principle in one context but that application has effectively been overruled by 1925 P.C. 60; nevertheless, the Court was not prepared to accept that 1925 P.C. 60 should be extended to displace the established Indian course of decisions without a clearer pronouncement by the Judicial Committee itself.

Having resolved to adhere to the Rankin, C.J. approach, the Court proceeded to assess whether the proposed appeal raised a substantial question of law. The Court identified the substantive dispute: whether the properties belonged to Hari Nath (entitling plaintiffs to one-half) or to his wife Jagatmohini (entitling plaintiffs to one-third).

The Court reviewed the applicant's specific grounds:

  • On the onus of proof: the Court held that "no two views are possible" on the placement of the onus and that the different items had been separately considered to determine the extent of burden and discharge.
  • On properties in Mohendra's name: the Court noted the accepted common case that Mohendra was not the owner but a benamdar for Hari Nath or Jagatmohini, and observed the plaintiffs never sought to claim as Mohendra's heirs; hence the argument did not succeed.
  • On the fiduciary/estoppel contention arising from Jagatmohini's possession as guardian under Act 40 of 1858: the Court observed this contention had not been raised earlier and depended on facts that had never been investigated.
  • On the inference of a family arrangement: the Court noted there was a finding (rightly or wrongly) that there was an apprehension of a dispute, and therefore it could not see that any question of law arose on this ground.
  • On part performance, limitation, adverse possession or estoppel: the Court recorded a finding of part performance; while this posed a question of law, the Court concluded it was not a substantial question of law for the purposes of granting leave.

Weighing these considerations, the Court concluded that the applicant had not shown the existence of a substantial question of law that would justify leave to appeal to the Privy Council.

Holding and Implications

Holding: The application for leave to appeal to His Majesty in Council is dismissed.

Direct consequences and costs:

  • The applicant is denied leave to appeal to the Privy Council.
  • The application was dismissed with costs; specifically, a hearing-fee of five gold mohurs was ordered.

Broader implications as indicated by the Court:

  • The Court expressed its preference to adhere to the narrower approach exemplified by Rankin, C.J. (1927 Cal. 5437) regarding the interpretation of the relevant provision on leave to appeal, and declined to adopt a broad reading of 1925 P.C. 60 in the absence of a clearer and more authoritative pronouncement by the Judicial Committee.
  • The decision does not purport to lay down a new authoritative rule that displaces the existing line of Indian authorities; rather, it follows the established approach that a party who has succeeded on a particular point at the appellate stage must nonetheless show a substantial question of law to obtain leave to appeal on other points on which the Courts concurred.

Order recorded in the opinion: "Application dismissed." (hearing-fee 5 gold mohurs)

Show full summary ...

    Bibhuti Bhusan Dutta v. Sreepati Dutta And Others

    1. This is an application for leave to appeal to His Majesty in Council from a decree made by this Court on a first appeal. The suit was for partition of certain properties the plaintiffs claiming a half share therein, and also for accounts. The Subordinate Judge made a decree declaring in effect the plaintiffs' share to be one-third, after excluding certain properties which he found had been already partitioned, and also ordering accounts for a certain period. Of the properties in respect of which he decreed partition, he ordered a few items to be kept joint and the others he ordered to be partitioned by metes and bounds. This Court, on an appeal by plaintiff 1 and a cross-objection by plaintiff 2, varied the decree of the trial Court by dismissing the appeal save and except that it ordered a partition by metes and bounds of all the properties found to be joint. Plaintiff 1 is the applicant for leave.

    2. The appellant relies upon the decision of the Judicial Committee in 1925 P.C 601 for his contention that the decree of this Court is not a decree of affirmance and so it is not necessary for him to show that the appeal involves some substantial question of law and that he is entitled to leave as a matter of course inasmuch as the subject-matter of the suit as also of the intended appeal is over Rs. 10,000 in value. There is undoubtedly considerable force in this contention if the arguments of the petitioner's counsel in that case is to be taken as having been accepted by their Lordship in its entirety in the order that was made. This Court however has refused, on the strength of 1925 P.C 60, to break away from a long course of decisions of Courts in India which have firmly laid down the principle that when the appellate Court modifies the original decree upon a single point and that completely in the applicant's favour so that he has no further grievance in that matter, he cannot, because of that modification, have a right to an appeal on other points on which the Courts have concurred, without showing a substantial question of law.

    3. The enormity of the opposite view is so very great that a far more clear and express pronouncement of the Judicial Committee would be necessary to uphold it. 1925 P.C 60 has been referred to in some of the decisions of the Patna and the Madras High Courts as laying down that unless the decree from which the appeal is sought to been taken is nothing but a decree which in its entirely affirms the decree of the Court immediately below it, leave cannot be withheld if the requirement as to value is satisfied, or in other words that the incident as to affirmance is to be entirely ignored as soon as any variation is found: see 1928 Pat. 6092, 1929 Pat 5613, 1932 Mad. 464 and 1933 Pat. 2625.

    4. Now, in 8 C.W.N 2946 the Judge below had given an award of compensation at a certain figure and the High High Court increased that amount. The applicant for leave wanted to go to the Privy Council so that the amount might be further increased. For this excess, which was to be debated before the/Privy Council, the two Courts below were ??? one. It was held that being the position the decree to be appealed from was one of affirmance, or in other words that S. 110 of the Code was to be construed with reference to the subject-matter in dispute in appeal to the Privy Council. In 1925 P.C 60 the position was that the person claiming to lave been adopted by the senior widow brought a suit claiming the property. The junior widow and the person whom the said she had adopted resisted the;laim and the former claimed maintenance at Rs. 3,000 per annum. The first Court decided in favour of the plaintiff upon the question of adoption but decreed to the widow maintenance at the are of Rs. 800 per annum. The appellate Court increased the maintenance to Rs. 1,200 per annum, but in all other respects affirmed the decree of the first Court. The junior widow and her alleged adopted son applied for leave to appeal to the Privy Council. If 8 C.W.N 294 was to be applied the only matter of substance in the proposed appeal to the Privy Council, namely the ??? amount of maintenance that was being claimed, being one in respect of which both the Court had been in agreement the decree sought to be appealed from was to be regarded as a decree of affirmance. The Privy Council appears to have been of opinion that it was not to be so regarded. The particular application made in 8 C.W.N 294 of the principle that in applying S. 110 of the Code you have to have regard to the subject-matter of dispute in the appeal to the Privy Council must be taken to have been overruled. But does 1925 P.C 60 go any further than that and does it lay down that in every case where the decree of the High Court is not a mere decree dismissing the appeal you are to take it that it is not a decree of affirmance so as to take the case out of para. 3 of that section and bring it within the first? Rankin, C.J, in 1927 Cal. 5437, was not prepared to hold on the authority of 1925 P.C 60 that such a position could be affirmed. He observed:

    “It appears to me that the case of 1925 P.C 60 is not in itself a sufficient authority to justify this Court in abandoning the principle which it has with other High Courts acted upon that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council.”

    5. In 1925 P.C 60 the appeal to be preferred was on the question of maintenance, and the two Courts had differed on the question of the amount of the maintenance, the High Court in favour of the intending appellant. In the case before Rankin, C.J, the original decree gave the applicant a certain share in the property in suit, but the appellate Court while it confirmed the original decree in every other respect modified it in respect of the share giving him the whole share he claimed so that on that point he had no further grievance. The question was whether the appellate decree was nevertheless one varying the original decree and the applicant was entitled to leave to appeal without proving that a substantial question of law was involved. Rankin, C.J, held in the negative and observed:

    “We may take it, I think, that where the amount is a question in dispute the fact that the Courts differ and the higher Court differs in favour of the applicant does not mean that the decision is one of affirmance but I am not prepared to say that because on a totally different point, namely a point about the share, the applicant has succeeded and succeeded altogether, so that he has no further grievance in that matter; he can without showing a substantial question of law have a right to litigate upon other points upon which the Courts have been in agreement.”

    6. As regards the cases cited on behalf of the applicant the leave that was granted in them may perhaps be justified upon other grounds than upon the applicant's contention as regards 1925 P.C 60. But whether that is so or not we need not pause to consider, because it cannot be denied that the cases do support the view which the applicant contends for. On the other hand there have been decisions in which the view taken by Rankin, C.J, as to the true effect of 1925 P.C 60 has been adopted. For instance in 1932 Nag. 1188, it has been said:

    “Where the modification of a decree of a lower Court consists of a modification of a pecuniary nature in the appellant's favour on a matter to be debated before the Privy Council, it amounts to a variation of the decree of the trial Court, and it is immaterial as far as that point is concerned, whether under S. 110 any substantial question of law is involved. But the appellant cannot make that decision a basis of appeal to the Privy Council on grounds unconnected with or dissociable from those on which he has succeeded and on which the Courts were of one mind.”

    7. In 1930 Lah. 1029 the trial Court's decree was for Rs. 13,000 and the appellate Court varied it by ordering, in accordance with the award on which it was founded, that if the defendant did not give possession to the plaintiff within a certain time he would have to pay him that amount. Leave was refused as it was thought that the variation was not a substantial one. A Special Bench of the Allahabad High Court however in 1932 All. 6510 has taken the view that 1925 P.C 60 is an authority for the proposition that if the decree of the Court below has been varied, no matter to what extent the decree cannot be one of affirmance and there is no reason why words should be read into the section which are not there. The above in short is the position of authorities bearing on the point. We have carefully considered the matter and are inclined to agree in the view of Rankin, C.J, as to the true effect of 1925 P.C 60 and we would prefer to adhere to it until a more definite and authoritative pronouncement is made by the Judicial Committee to the contrary.

    8. We proceed next to consider whether there is a substantial question of law involved in the proposed appeal. The substantial question in controversy between the parties is whether the properties in suit belonged to one Hari Nath or to his wife Jagatmohini; the plaintiffs claimed a half share on the footing that the properties belonged to Hari Nath, while the defendants' case was that the plaintiffs' share amounted to only a third the properties having belonged to Jagatmohini and not to Hari Nath. The applicant for leave takes as his first ground that the onus of proof has been wrongly placed on the plaintiffs, and that in any event such burden as rests on them is not the same in respect of all the properties. In our opinion no two views are possible on the question of onus, and the different items of properties have been separately considered in order to find out to what extent the burden lies on the plaintiffs and to what extent has been discharged.

    9. It is then said that so far as propertie standing in Mohendra's name are concerned the plaintiffs as heirs of Mohendra should get a larger share. But this argument overlooks the common case of both parties—a case which he also been found to be true—that Mohendra was not the owner of the proper ties but only a benamdar either for Hari Nath or for Jagatmohini and that the plaintiffs have never come forward it claim as Mohendra's heirs. Thirdly, has been argued that the decision over looks the fact that Jagatmohini having come into possession of some of the properties as guardian under Act 40 of 1858 had assumed a fiduciary character of which she could not divest herself without first making over possession to the beneficial owners and getting herself discharged from that character, and therefore the defendants who claim through her are estopped from setting up he title to the properties. This contention was never raised at any point of time till now and depends on facts which have never been investigated.

    10. Nextly it has been said that from the facts found no inference in the nature of a family arrangement should have been inferred. What is wanting to warrant such inference is said to be this: that a dispute, such as would justify a family arrangement, has not been sufficiently proved by evidence. There is however a finding, rightly or wrongly arrived at, that there was an apprehension of a dispute. We therefore cannot see that any question of law arises. Fifthly it is said that mere acting for a number of years under the said family arrangement could not effect a change of title unless limitation or adverse possession for the statutory period or some doctrine of estoppel intervenes, and it is urged that in the decision there are findings which go to show that these extraneous incidents are absent. The answer to the contention is that part performance has been found. The question though one of law, is not in our judgment a substantial question of law. We accordingly do not see our way to grant the leave asked for. The application is dismissed with costs, hearing-fee 5 gold mohurs.

    K.S

    11. Application dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Bibhuti Bhusan Dutta v. Sreepati Dutta And Others
    (Aug 1, 1934)