Jwala Prasad, J.:— This case has come to me on account of a difference between Khaja Mohamad Noor, J. and Scroope, J., who origanlly heard the appeal. The appeal arises out of a simple money suit based on an adjusted account embodied in a chita, Exhibit 3. The defendants are members of one family, the karta or head member being defendant no. 1, Gaudham Rai. Deep Rai was uncle of Gaudham. He is dead and during his time he was the karta of the family. The chita in question, Exhibit 3, is dated the 30th Bhado, 1331. At that time Deep Rai was alive and the chita purports to have been signed by Gaudham Rai and Deep Rai by their own pen (bakalam khas). In the signature portion it is stated that those persons understood the account showing Rs. 5,416 as due from them which they acknowledged. The defendants deny their signatures on the chita and also the transactions mentioned therein. They also deny the previous chitgs, Exhibits 6(a) to 6(d) upon which the plaintiff relies as showing the previous transactions and lenden between the parties. The suit was tried by the Subordinate Judge, 2nd Court, Saran and the principal issues raised were whether (2) the chitas in question were genuine and for consideration, and (2) whether the defendants were liable for any sum to the plaintiff. The Subordinate Judge answered these issues in the negative and dismissed the suit. The plaintiff filed an appeal to this Court and as observed above, the case was heard by a Division Bench of this Court presided over by the learned Judges referred to above. They differed on all the points involved in the case as well as about the result of the appeal. Khaja Mohamad Noor, J., held that the plaintiff's case was true. Accordingly he was of opinion that the appeal should be allowed and the plaintiff's suit should be decreed. Scroope, J., agreeing with the Subordinate Judge, would dismiss the suit. On account of this difference the learned Judges passed the following order:
“The order of the Court is that the record of this case be laid before the learned Chief Justice so that the points on which we have differed may be heard and decided by such Judge or Judges as he directs and a decree may be passed as provided by section 28 of the Letters Patent of this Court.”
At the outset in the order of reference the learned Judges say:
“We have in fact differed on all the points involved in the appeal.”
These points have not been formulated in the order of reference and we have to gather them from the judgment of the learned Judges. Broadly speaking the two issues referred to above upon which the parties went to trial before the learned Subordinate Judge are the principal points. Incidentally during the trial a question arose as regards the admissibility and value of Exhibit 8, a certified copy of an income-tax return purporting to have been filed on behalf of Ghina Rai, Deep Rai (one of the executants of Exhibit 3) and Ambika Rai in which debts due to Mahajan Debi Prosad Pande from the persons on whose behalf the return was filed according to the adjustment of account up to the 30th Baisakh, 1331, amounting to Rs. 4,500 with interest at 5 annas per cent, has been shown. The learned Subordinate Judge held that the return was collusively brought into existence as against Gaudham and that it does not contain the complete account. Before the learned Judges this question was also raised as to the admissibility and proof of the document and Khaja Mohamad Noor, J. holds that section 54 is no bar to its admissibility; that the document is admissible in evidence and it completely proves the plaintiff's case. Scroope, J., on the other hand, holds that it is unnecessary to decide whether the original would have been admissible in evidence had it been produced here but in his view the certified copy is not admissible in evidence; and he also holds that there has been some “trickery” in the matter of the income-tax return.
Mr. S.M Mullick argues that the reference is incompetent, and the decision of the Subordinate Judge should have been confirmed under section 98(2) of the Code of Civil Procedure. Mr. Mullick also says that even if the reference is valid, it cannot be heard by a single Judge. As to the first point, Mr. Mullick relies on the case of Prafulla Kamini Roy v. Bhabani Nath Roy. In that case it was held that a difference of opinion having arisen between two Judges of the High Court in an appeal from a subordinate Court to the High Court, section 98 of the Civil Procedure Code (1908) and not clause 36 of the Letters Patent (1865) applies. Now clause 36 of the Letters Patent of the Calcutta High Court corresponds with clause 28 of the Letters Patent of the Patna High Court. This decision was passed in 1925. At that time clause 28 provided
“that when the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but if the Judges be equally divided, then the opinion of the senior Judge shall prevail.”
In 1928 the clause was amended by providing that
“If, the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.”
At that very time clause (3) was added to section 98 of the Code of Civil Procedure. That clause runs as follows:
“Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.”
As to whether the provision contained in the Letters Patent prior to the amendment in 1928 of section 98 of the Code of Civil Procedure applied, there was a good deal of difference of opinion and Page, J. in the case referred to above in the opening paragraph of his judgment referred to this controversy as coming on from a long time observing that it can only be satisfactorily set at rest by the “action of the Legislature now long overdue”. The amendment both of clause 28 of the Letters Patent and the addition of clause (3) to section 98 purport to solve the controversy. The reference under the present clause of the Letters Patent is, therefore, competent. This view is supported by the recent decision of the Full Bench of the Madras High. Court in Immidisetti Dhanaraju v. Sait Balakissendas Motilal and the principle is also supported by the Privy Council decision in Bhaidas Shivdas v. Bai Gulab, though it refers to a Letters Patent Appeal under section 36. The point was urged before the learned Judges who have made the reference under clause 28 of the Letters Patent and by their decision dated the 22nd July, 1931, they have overruled the objection of Mr. Mullick.
The next point urged is that the reference cannot be heard by a single Judge. Clause 28 of the Letters Patent says that the reference shall be heard by one or more of the other Judges. So under that clause a single Judge is competent to hear it. It is then urged that Chapter 2, clause (1), of the High Court Rules provides for the cases to be heard by a single Judge but does not refer to a reference under clause 28. Reference is also made to clause (6) of Chapter II of the Rules which provides for appeals under clause 10 of the Letters Patent to be heard by a Bench of three Judges. That, clause can have no application inasmuch as the present is not an appeal under clause 10 of the Letters Patent but a reference under clause 28 of the Letters Patent. True there is no specific provision made as regards reference under clause 28; but at the time the rules were framed clause 28 as now amended did not exist. Before the amendment there could be no reference under clause 28 as the opinion of the senior Judge was to prevail. There was no occasion, therefore, to provide for such a contingency as has now arisen by reason of the amendment. Section 108 of the Government of India Act, clause (2), read with the saving provision in clause 10 of Chapter II of the Rules of the High Court, gives power to the Chief Justice to order a reference of this kind to be heard by a single Judge. This contention must, therefore, also be overruled.
[The rest of the judgment is not material.]
Order accordingly.