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Ali Zamin v. Mohammad Akbar Ali Khan .
Judgment Summary — Application for Leave to Appeal to His Majesty-in-Council
Factual and Procedural Background
This opinion concerns an application for leave to appeal to His Majesty-in-Council under Section 110 of the Civil Procedure Code (CPC). The underlying suit was instituted by the opposite party (the plaintiff) seeking to set aside a wakf deed dated 25 May 1917 and a supplementary deed dated 19 February 1919 executed by the late Nawab Haji Syed Muhammad Mehdi Hassan Khan (commonly known as Badshah Nawab).
The plaintiff (an heir of Badshah Nawab) alleged: (1) the wakf deeds were executed under undue influence by Syed Ali Zamin (the petitioner) and Bibi Zainia (the wife of Badshah Nawab); (2) the wakf deeds were illusory and without substance; and (3) there was never such complete transmutation of possession as required under Shia law to constitute a valid wakf. The plaintiff also claimed that the houses and premises No. 68, Dharamtalla Street in Calcutta belonged to the estate of Badshah Nawab and not to Bibi Zainia.
The learned Subordinate Judge decided each question in favour of the plaintiff and granted a decree substantially as claimed, including a decree for mesne profits against Syed Ali Zamin, who claimed to have succeeded to the office of mutawalli on Badshah Nawab's death. Syed Ali Zamin and Bibi Zainia appealed to the High Court.
On appeal (reported in the opinion as Ali Zamin v. Mahomed Akhand Ali), the High Court varied parts of the subordinate court's decree: it held that No. 68, Dharmatalla Street belonged to Bibi Zainia (not to the estate), set aside the decree for mesne profits against Ali Zamin but directed him to account for management of the wakf property from March 1919 up to 1 October 1922 (when he gave up one third of the property). On the main question, the High Court affirmed the subordinate court's decree in result, but set aside that court's findings on undue influence and on the wakf being illusory; the High Court did agree with the subordinate court that there had not been the transmutation of possession required under Shia law and therefore the wakf deed could not be given effect.
Legal Issues Presented
- Whether the decree appealed from can be said to affirm the decision of the Subordinate Judge (i.e., whether the High Court's decree affirmed the decision of the Court immediately below).
- If the decree does affirm the decision of the Court immediately below, whether the appeal involves some substantial question of law such as would justify leave to appeal under Section 110 of the CPC.
Arguments of the Parties
Petitioner's (Syed Ali Zamin's) Arguments (as presented by Mr. Khurshed Husnain)
- There is a substantial question of law: the circumstances relied upon by the Court to establish that there was no change of possession are in truth circumstances showing breaches of trust by Badshah Nawab and are not proper circumstances for determining the question of transmutation of possession.
- Badshah Nawab was the proprietor of the estate and, under the deed of wakf, was to be the first mutawalli; therefore the critical question was whether there was sufficient manifestation of an intention by Badshah Nawab to change his character of possession from proprietor to trustee.
- The recital in the wakf deed that Badshah Nawab had changed his character of possession is, he argued, conclusive on that question and evidence of subsequent transactions is not admissible to challenge that recorded recital.
- He relied upon the Judicial Committee decision in Satgur Prasad v. Kishore Lal, which he read as deciding that the question of the true character of possession is one of legal inference from documents (not purely a question of fact).
Opposite Party's Arguments (as presented by Sir Sultan Ahmed)
- The variations introduced by the High Court (for example, in respect of ownership of No. 68 and in respect of mesne profits) were entirely in favour of the appellant (petitioner), and such variation should not give the petitioner the right to appeal to His Majesty-in-Council from that portion of the decree of the High Court which affirms the decree of the Court of first instance.
- Later, he contended that the Judicial Committee decision cited (Annapurnabai v. Ruprao) was not applicable because in that case the defendant was a counter-claimant who had obtained an increased award in the appellate court; in the present matter the defendant (petitioner) had not asked for a decree in his favour (i.e., he was not a counter-claimant in the same sense), and that distinction was advanced to resist the analogy.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ali Zamin v. Mahomed Akhand Ali | The High Court's findings in the appeal: ownership of No. 68 Dharmatalla Street, entitlement of Ali Zamin to remain in possession pending determination, and direction to account for management of wakf property. | The opinion describes how on appeal the High Court varied the subordinate court's decree in respect of ownership and mesne profits, and affirmed the main decree only in result while setting aside certain subordinate findings. Those variations were central to the Court's conclusion that the High Court's decree did not "affirm" the decision of the Court immediately below. |
| Satgur Prasad v. Kishore Lal | That the question of the true character of possession is in reality one of legal inference from documents and not only one of fact. | Relied upon by the petitioner's counsel (Mr. Khurshed Husnain) to argue that the recital in the wakf deed should be conclusive and subsequent transaction evidence inadmissible; the court acknowledged the force of this argument but found it unnecessary to decide that point for the purposes of the leave application. |
| Annapurnabai v. Ruprao | That where an appellate court varies the decree of the court immediately below, it cannot be said that the appellate decree "affirms" the decision of the court immediately below for the purposes of Section 110 of the CPC. | The court treated this decision as dispositive: applying Annapurnabai v. Ruprao, the judge concluded that because the High Court had varied the subordinate court's decree in several respects, the High Court's decree could not be regarded as affirming the subordinate court's decision, and therefore the petitioner was entitled to the usual certificate for leave to appeal to His Majesty-in-Council. |
Court's Reasoning and Analysis
The court approached the application subject to the requirements of Section 110 CPC (the case satisfied the value requirement). It recognized two preliminary questions to determine: (1) whether the High Court's decree affirmed the decision of the Subordinate Judge; and (2) if it did, whether a substantial question of law arose.
The court described and considered the petitioner's argument (as advanced by Mr. Khurshed Husnain) that there was a substantial question of law — specifically, whether the evidence relied upon to show no transmutation of possession was admissible or whether the deed's recital should be conclusive (drawing on Satgur Prasad v. Kishore Lal). The judge accepted that this was an attractive argument and did not rule it out on principle, but held that it was unnecessary to decide that issue because he was satisfied on the documentary comparison of the two decrees that the High Court's decree did not, either in form or in substance, affirm the decision of the subordinate court.
The judge compared the decrees and noted express variations by the High Court: (a) the ownership of No. 68 Dharmatalla Street was adjudged to belong to Bibi Zainia (contrary to the Subordinate Judge); (b) the decree for mesne profits against Ali Zamin was set aside though he was directed to account for management over a given period; and (c) while the High Court affirmed the main result, it set aside specific findings of the subordinate court (e.g., on undue influence and on the wakf being illusory) while agreeing on the lack of transmutation of possession under Shia law.
Applying the Judicial Committee's decision in Annapurnabai v. Ruprao, the judge concluded that an appellate court's variation of the lower court's decree means the appellate decree cannot be said to have "affirmed" the decision of the court immediately below for purposes of Section 110. The judge rejected Sir Sultan Ahmed's contention that a variation that benefits the appellant should bar the right to appeal or that the case of a defendant/counter-claimant should be treated differently under Section 110.
Given that the High Court had varied the subordinate court's decree and the case satisfied the statutory value threshold, the judge concluded the petitioner was entitled to the usual certificate granting leave to appeal. The court also awarded the petitioner the costs of the application, including a hearing fee of five gold mohurs. Justice Wort agreed with the disposition.
Holding and Implications
HOLDING: Leave to appeal to His Majesty-in-Council was granted. The petitioner was given the usual certificate permitting appeal to His Majesty-in-Council and was awarded the costs of the application, including a hearing fee of five gold mohurs.
Implications:
- Direct effect on the parties: the petitioner (Syed Ali Zamin) receives leave to appeal to His Majesty-in-Council and costs for the application as ordered.
- On the legal question of what constitutes an appellate court "affirming" the decision below under Section 110 CPC: the court applied Annapurnabai v. Ruprao to hold that where the appellate court varies the lower court's decree (even if variation benefits the appellant), the appellate decree cannot be regarded as an affirmation of the subordinate court's decision for the purposes of Section 110. The opinion relies on that precedent rather than purporting to establish a new principle.
- The court did not decide the substantive contested legal point pressed by the petitioner (whether the recital of character in the wakf deed is conclusive or whether facts showing breaches of trust may be considered in determining transmutation of possession), deeming it unnecessary to resolve that issue for the leave application.
This summary is strictly confined to the content and reasoning contained in the provided opinion and does not add or infer facts or legal holdings beyond the text of the opinion.
Das, J.:— This an application for leave to appeal to His Majesty-in-Council. As regards the value the case fulfils the requirements of Section 110 of the CPC, and the questions argued before us are two in number; first whether it can be said that the decree appealed from affirms the decision of the Sub-ordinate Judge; and secondly, if the answer to the first question be in the affirmative, whether the appeal involves some substantial question of law.
2. The suit was instituted by the opposite party in substance for setting aside a wakf deed dated 25th May 1917 and a supplementary deed dated 19th February 1919 executed by the late Nawab Haji Syed Muhammad Mehdi Hassan Khan commonly known as Badshah Nawab.
3. The plaintiff-opposite party is one of the heirs of Badshah Nawab and it is his case that the deeds in question were executed by the Badshah Nawab under the undue influence of Syed Ali Zamin, the petitioner before us, and Bibi Zainia, the wife of Badshah Nawab; and, secondly, that the wakf deeds are wholly illusory and have no substance in point of fact; and thirdly, that there was never such complete transmutation of possession as is required under the Shia law to complete a wakf. He also claimed that the houses and premises No. 68, Dharamtalla Street in Calcutta did not belong to Bibi Zainia but belonged to the estate of Badshah Nawab. The learned Sub-Judge decided each of the questions in favour of the plaintiff and gave him a decree substantially as claimed by him. That Court also gave him a decree for mesne profits against Syed Ali Zamin, who claimed to have succeeded to the office of the mutawali on the death of Badshaw Nawab. Syed Ali Zamin and Bibi Zainia appealed to this Court. On appeal this Court held [Ali Zamin v. Mahomed Akhand Ali(1)], that the house and premises 68, Dharmatalla Street, was the property of Bibi Zainia and did not belong to the estate of Badshah Nawab. To this extent this Court varied the decree passed by the Court of first instance. This Court also held that defendant Ali Zamin was entitled until the matter was determined by a Court of justice to remain in possession of the property and administer the estate in accordance with the strict terms of the instrument of wakf. In this view the High Court set aside the decree for mesne posts passed against Ali Zamin but directed him to account to the plaintiff for the management of the wakf property from the time he took possession in March 1919 up to 1st October 1922 when he gave up possession of one third of the property to the plaintiff. To this extent also this Court varied the decree passed by the Court of first instance. On the main question, however, this Court affirmed the decree of the Court of first instance; but doing so it set aside the findings of the Court of first instance both on the question of undue influence as also on the question whether the wakf deed was illusory. It agreed, however, with the Court of first instance in holding that there was not such transfer of possession as the Shia law required and that consequently the wakf deed could not be given effect to.
4. It was contended on behalf of Ali Zamin the petitioner before us that there is in fact a substantial question of law involved in this appeal. As I understand the argument of Mr. Khurshed Husnain he contends that the Circumstances upon which this Court relied as establishing that there was no change of possession are circumstances showing breaches of trust on the part of Badshah Nawab but are not Circumstances that can be taken note of by the Court in determining the question of transmutation of possession. He contends that Badshah Nawab was the proprietor of the estate. He shows that under the deed of wakf the Badshah Nawab was to be the first mutawalli and he argues that, this being the position, the only question which had to be considered by the Court was whether there was sufficient manifestation of an intention on the part of Badshah Nawab to change his character of possession from that of a proprietor to that of a trustee; and he insists that the recital in the wakf deed that he has in fact changed his character of possession is conclusive on the question, and that the evidence of subsequent transactions is not admissible on this question. Mr. Kurshed Husnain relies upon a decision of the Judicial Committee in Satgur Prasad v. Kishore Lal(2) which decides that the question of the true character of possession is in reality one of legal inference from documents and not one of fact. I confess that the argument is a vary attractive one and I am not prepared to say that Mr. Khurshed Husnain is not right in the view which he has presented to us; But it is not necessary for me to come to a decision on this point as I have no doubt whatever, that the decree appealed from cannot be regarded as having affirmed the decision of the Court immediately below.
5. As I have said the decree of this Court set aside the decree of the learned Sub-ordinate Judge in regard to the ownership of No. 68, Dharmatalla Street, in Calcutta. It also set aside the decree of the Sub-ordinate Judge in regard to the question of mesne profits; although, in lieu thereof it directed the defendant to account to the plaintiff on the footing that the defendant was a trustee of the property up to a particular date. Sir Sultan Ahmed appearing on behalf of the opposite party contends that the variation is entirely in favour of the appellant and that such variation as there is in the decree of this Court will not give him the right to appeal to His Majesty in-Council, since the petitioner is really appealing from that portion of the decree of this Court which affirms the decree of the Court of first instance. I confess that on the words of the statute the argument is wholly inadmissible. All that we have to sea under S. 110 of the Code is whether
the decree or final order appealed from affirms the decision of the Court immediately below.
6. If it does, then the applicant is not entitled to succeed unless he satisfies the Court that the appeal involves some substantial question of law; but in this case one has only to read the two decrees, the one passed by the learned Sub-ordinate Judge and the one passed by the High Court, to be satisfied that neither in point of form nor in substance can it be said that the decree appealed from affirms the decision of the learned Sub-ordinate Judge. The decision of the Judicial Committee in Annapurnabai v. Ruprao(3) in my judgment concludes the matter. That was an appeal by the defendant in a suit by the plaintiff in which he claimed a certain property by right of adoption. The defendant who was the widow of the last owner denied the adoption. She also claimed to be entitled to Rs. 3,000 per annum as maintenance if the adoption were proved. The Courts in India concurrently found in favour of the adoption. The first Court gave the widow maintenance at the rate of Rs. 800 per annum. The Court of the Judicial Commissioner modified the decree passed by the first Court by increasing the maintenance from Rs. 800 to Rs. 1,200 per annum. It will be noticed that the modification was entirely in favour of the defendant who now applied to the Court of the Judicial Commissioner for leave to appeal to His Majesty-in-Council. The application was dismissed on the ground this the decree of the first Court had been affirmed except in regard to a small change in favour of one of the applicants, and that no question of law was involved. In applying for special leave, Sir George Lowndes. K.C claimed that his client had a right to appeal to the Privy Council under the express words of the statute. He pointed out that the appellate Court did not affirm the decree of the first Court but varied it; and that consequently it was not material under S. 110 whether any substantial question of law was involved. He, however, stated that having regard to the concurrent findings on the question of adoption, the petitioner desired to appeal only with regard to the amount of the maintenance. Lord Dunedin in delivering the judgment of the Judicial Committee said as follows:
In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of S. 110 of the Code is correct. They had therefore a right of appeal.
7. Now the contention was that the appellate Court did not affirm the decree of the first Court but varied it. In my opinion this is the exact position we have before us.
8. Sir Sultan Ahmad contended before us that the decision of the Judicial Committee is not applicable to this case inasmuch as the defendant in this case has not asked for a decree in his favour. The argument appears to be this: The defendant in the case before the Judicial Committee was the counter-claimant and put forward a claim to Rs. 3,000 per annum for maintenance. The Court of first insance gave her Rs. 800 and the Court of the Judical Commissioner gave her Rs. 1,200; but as her claim was for Rs. 3,000, she was entitled to appeal to His Majesty-in-Council, the decree of the Judicial Commissioner having varied the decree passed by the Court of first instance. I confess that it is difficult to follow this argument. S. 110 makes no exception in favour of defendant who may happen to be a counter-claimant. The only question is whether a decree of the High Court may be said to affirm the decision of the Court immediately below where the High Court varies the decision of the Court immediately below. Lord Dunedin in the case to which I have referred found that in such a case it cannot be said that the decree of the High Court has affirmed the decision of the Court immediately below. This being the position and the case fulfilling the requirements of S. 110 of the Code in regard; to the amount or value of the subject-matter of the suit, I am of opinion that the petitioner is entitled to the usual certificate giving him leave to appeal to His Majesty-in-Council. He is also entitled to the costs of this application; hearing fee five gold mohurs.
Wort, J.:— I agree.
D.B/R.K
9. Leave granted.
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