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Bashir Md. Khan v. Md. K.A Khan
Structured Summary of the Opinion (Manohar Lall, J.)
Factual and Procedural Background
This opinion arises from an application by the principal defendant, Bashir Mohammad Khan, for leave to appeal to His Majesty in Council from a decision of this Court which reversed the decision of the Subordinate Judge. The underlying suit was instituted by a plaintiff to recover his share in a dower alleged to be Rs. 40,000 and one gold dinar due to the deceased, Musammat Bibi Hamidan. Two brothers of the plaintiff, Zahir Ahmad Khan and Monir Ahmad Khan, were made pro forma defendants; the plaint alleged they refused to join for want of court-fees but intended to institute a suit later.
The Subordinate Judge originally found the plaintiff's witnesses unsatisfactory to prove a dower of Rs. 40,000 and one gold mohur, treated the dower as partly prompt and partly deferred, and held that because demand for the prompt portion must have been made long before the suit the plaintiff was not entitled to a decree. This Court reversed that decision, finding the dower fixed at Rs. 40,000 and a gold mohur and that there was no satisfactory evidence that part of the dower was prompt; the consequence was a decree in favour of the plaintiff for Rs. 6,666;8-8 representing his admitted share.
The defendant-applicant contended that (a) the dower debt was only Rs. 500 and (b) the plaintiff's suit was barred by limitation. After reversal by this Court the defendant applied for a certificate under section 110 of the Code of Civil Procedure to appeal to His Majesty in Council, asserting that the High Court's reversal directly or indirectly involved property above Rs. 10,000 and that the decision has estoppel/res judicata effects vis-à-vis the pro forma defendants who have since instituted a suit.
Legal Issues Presented
- Whether the applicant (the defendant) is entitled to a certificate under section 110 of the Code of Civil Procedure to appeal to His Majesty in Council because the judgment of this Court reversed the Subordinate Judge and directly or indirectly involves a claim or question respecting property of the value of Rs. 10,000 or upwards.
- Whether, for the purposes of obtaining a certificate under section 110, the relevant value is (a) the value of the property to which the claim or question relates (even if the applicant has not suffered loss of Rs. 10,000), or (b) the extent of the loss or detriment actually caused to the applicant by the decree (i.e., whether the loss to the applicant is Rs. 10,000 or upwards).
- Whether the High Court's decision, in reversing the Subordinate Judge, had the effect of directly or indirectly affecting the rights of co-sharers/pro forma defendants (and thereby bringing into play the larger value of the estate) such that the Rs. 10,000 threshold is met.
Arguments of the Parties
Applicant / Defendant's Arguments
- The judgment of this Court being a judgment of reversal and the decree directly or indirectly involving a claim or question respecting property above Rs. 10,000, the applicant is entitled to a certificate as a matter of right under section 110.
- The decision of the High Court has the effect of estopping the appellant by res judicata from contesting the amount of the share in the dower which will be payable to the pro forma defendants when they institute their suit.
- It is immaterial that in the present suit the pro forma defendants did not lay any claim to their share in the dower; those defendants have since instituted a suit for recovery of their share.
Respondent's Arguments
- Because the decree passed in favour of the plaintiff is for a sum below Rs. 10,000 (specifically Rs. 6,666;8-8), the value of the claim or question in the present case cannot be held to be above Rs. 10,000, and therefore a certificate under section 110 is not warranted.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dalgleish | The opinion groups this case under authorities holding that a final decree or order is appealable if the value of the property to which the claim or question relates is Rs. 10,000 or upwards, regardless of actual loss to the applicant. | The Court cited it as part of the first group of authorities supporting the "value of the property" approach; no detailed application specific to facts was described. |
| Shri Kishan Lal | Placed with cases supporting that appealability depends on the value of the property to which the claim relates (first head of authorities). | Referenced as part of the cluster supporting the view that appealability can depend on property value irrespective of the applicant's loss; no specific applied reasoning beyond grouping was recorded. |
| Muhammad Ashgar | Also listed among authorities for the proposition that final decrees/orders are appealable if value of the property affected is Rs. 10,000 or more. | Used to illustrate the first line of authority; the Court did not elaborate further on the case facts or application. |
| Subramania Ayyar | Leading case for the contrary principle: under section 110 CPC, the relevant consideration is the extent of loss or detriment suffered by the applicant; an appeal lies only if that loss or detriment is Rs. 10,000 or upwards. | Identified as the leading authority for the "loss-to-applicant" approach (second head). The Court acknowledged its prominence and cited follow-up approvals by higher courts. |
| Gosain Bhaunath Gir | Followed the rule in Subramania Ayyar in this Court (i.e., the loss-to-applicant criterion). | Referenced as an instance where this Court followed Subramania Ayyar; used in the Court's exposition of the two lines of authority. |
| Radha Kunwar | Listed among cases supporting the view that appealability depends on the applicant's loss (second head). | Used in grouping authorities of the second head; no specific application to the facts was described. |
| DeSilva | Included in the list of authorities adopting the "loss/detriment to applicant" approach under section 110. | Referred to as part of the second group of cases; no discrete application was described. |
| Raoji Bhikaji | Also cited as supporting the second head (loss-to-applicant requirement). | Grouped with similar authorities; the opinion does not record a detailed application of its facts. |
| Nariman Rustomji Mehta | Placed among authorities that require the loss to the applicant to be Rs. 10,000 or more for a section 110 appeal. | Mentioned in the Court's survey of authority; no specific application recounted in the opinion. |
| Gudivada Mangamma | Privy Council approval of the ratio decidendi of Subramania Ayyar (i.e., endorsing the loss-to-applicant principle). | Noted as part of a line where the Judicial Committee approved Subramania Ayyar; used to show higher-court treatment of the principle. |
| Mukhlal Singh | Privy Council decision approving the Subramania Ayyar ratio (loss-to-applicant approach). | Referred to as an instance of Privy Council approval; no further application to the present facts was recorded. |
| Jogesh Chandra Roy | Another Privy Council case approving Subramania Ayyar's ratio. | Noted by the Court as supporting the second head of authority via Privy Council approval. |
| Bai Shevantibai | Held that the value of the subject matter in dispute on appeal to the Privy Council must be taken as the value of the share claimed by the appellant, and that a question as to the title to a share does not become a question respecting the whole joint-family property merely because a successful claim would partition the estate. | Discussed by the Court as an important recent Privy Council decision illustrating that the appellant's own share-value is the relevant measure in certain plaintiff-appellant contexts. |
| Ram Kumar | Referenced to note that different considerations may arise when the applicant for leave is the defendant rather than the plaintiff. | Cited to indicate that the party applying (defendant vs plaintiff) may affect the analysis; the Court did not elaborate further on the case facts. |
| Vankatathirisami Naidu | Listed with cases pointing out different considerations where the applicant is the defendant. | Referenced as part of the discussion emphasizing that defendant-applicants may raise distinct issues; no detailed application recorded. |
| Damsons Bank, Limited (observations of Page, C.J.) | Quoted/relied upon for the proposition that different considerations arise when the applicant is the defendant. | Used to support the Court's observation that the identity of the applicant (defendant) affects the analysis under section 110; no further application to facts shown. |
| Md. Nurul Absar | Calcutta High Court decision applying the principle that a High Court judgment which directly involves the management or rights over parts of an estate beyond the immediate subject-matter can bring the case within the second paragraph of section 110 (i.e., meet the Rs. 10,000 requirement by indirect effect). | The Court found this case came nearest to the present facts and, after consideration, chose to follow its reasoning, granting the certificate in the present case so the Judicial Committee can authoritatively decide the point. |
| Khajeh Sayedulla | Held that applicants (plaintiffs in that case) cannot fall back on the capitalised value of an allowance due to all heirs when the decision did not directly involve the interests of other heirs who had not claimed; the applicants could not rely on value beyond their own share for section 110. | Relied upon by the respondent; Court considered it but distinguished by noting differences in which party was appellant and the effect of the judgment on non-claiming parties. |
| Mathura Prasad Singh | Discussed the proper construction as to the amount or value of the subject-matter: that it should be taken as the amount which the plaintiff obtained or would have obtained in his suit at the date when the decree was passed. | Quoted by the Court (learned Chief Justice's words) but the Court observed that the case did not aid the respondent in the present contention. |
| 50 Calcutta Weekly Notes, 255 | Referenced in relation to the position that Khajeh Sayedulla did not run counter to an earlier decision reported there (contextual comparative citation). | Referenced only to note that Khajeh Sayedulla did not conflict with that earlier report; no substantive application recorded. |
| Md. Nural Absar | This is an alternative spelling/mention in the opinion of the Calcutta High Court case discussed (see Md. Nurul Absar above). | The Court later refers back to this Calcutta High Court view as guiding and influential in the Court's ultimate decision to grant the certificate. |
Court's Reasoning and Analysis
The Court framed the central difficulty as a clash of authorities on the interpretation of section 110 of the Code of Civil Procedure. It identified two broad lines of authority:
- Authorities holding that a final decree or order is appealable if the value of the property to which the claim or question relates and in respect of which rights are affected is Rs. 10,000 or upwards, regardless of whether the applicant has actually suffered detriment of that value (examples grouped here included Dalgleish, Shri Kishan Lal and Muhammad Ashgar).
- Authorities holding that it is the extent to which the decree or order has operated to the prejudice of the applicant (i.e., the loss or detriment suffered by the applicant by the passing of the decree), and not the overall value of the property affected, which determines whether section 110 is engaged — in other words, an appeal under section 110 lies only if the applicant's loss is Rs. 10,000 or more. The leading case for this view was Subramania Ayyar, followed in subsequent cases and approved by the Privy Council in certain decisions.
The Court reviewed Privy Council authority (e.g., Bai Shevantibai) which emphasized that the value of the subject matter in dispute on appeal should be taken as the value of the share claimed by the appellant, rather than the entire joint-family property merely because a successful title might affect the whole estate.
The Court observed that a different set of considerations might arise where the applicant for leave is the defendant rather than the plaintiff, citing Ram Kumar and other authorities, and noted a closely analogous Calcutta High Court decision (Md. Nurul Absar). In the Md. Nurul Absar case the High Court had restored a decree holding an appointment illegal and the court concluded that the High Court's judgment directly involved the question of management of shares which, in aggregate, were of value more than Rs. 10,000 — thereby bringing the case within the second paragraph of section 110.
Weighing the competing authorities and the particular facts of the present case — including the reversal of the Subordinate Judge by this Court and the potential effect of that reversal on the rights or management of shares belonging to co-sharers/pro forma defendants — the Court considered the matter one of difficulty. After giving "most anxious consideration" to the authorities, the Court elected to follow the view taken by the Calcutta High Court in Md. Nurul Absar. The Court expressly stated that the question was one of difficulty and that granting the certificate would permit their Lordships of the Judicial Committee of the Privy Council to decide the matter authoritatively for guidance of the High Courts in India.
Holding and Implications
Holding: The applicant (Bashir Mohammad Khan) is granted a certificate that the requirements of section 110 of the Code of Civil Procedure are satisfied.
Implications:
- The direct effect is that the applicant is authorized to apply for leave to appeal to His Majesty in Council; the Court granted the requested certificate.
- The Court recognized the legal question as difficult and expressly sought an authoritative determination by the Judicial Committee of the Privy Council for guidance to the High Courts in India.
- The opinion does not purport to establish a definitive new precedent resolving the conflict of authority; instead, it resolves the procedural question in favour of granting the certificate so that the higher appellate forum can decide the substantive point.
- Each party was ordered to bear his own costs in this Court.
- Mukharji, J. concurred; the final notation in the opinion is "Leave granted."
Note: All statements in this summary are drawn exclusively from the provided opinion text. Where the opinion itself grouped or summarized authorities without detailed exposition of each cited case's facts or fuller application, that limited information alone has been used above.
Manohar Lall, J.:— This is an application by the principal defendant, Bashir Mohammad Khan, for leave to appeal to His Majesty in Council from a decision of this Court which reversed the decision of the Subordinate Judge in a suit instituted for recovery of the plaintiff's share in a dower which he alleged to be Rs. 40,000 and one gold dinar due to the deceased, Musammat Bibi Hamidan. Zahir Ahmad Khan and Monir Ahmad Khan, brothers of the plaintiff, were also made pro forma defendants in the suit on the allegation, that although they were to have joined in the suit, they refused to join as they could not arrange for the court-fees and they would institute a suit hereafter. The appellant's case was that the dower debt was only Rs. 500 and further that the suit of the plaintiff was barred by limitation.
The learned Subordinate Judge came to the conclusion that the evidence of the witnesses of the plaintiff was unsatisfactory to prove that the dower fixed was Rs. 40,000 and one gold mohur. He also held that the dower debt must be assumed in this case to be prompt in part and deferred as to the other part and as Musammat Bibi Hamidan must have made a demand for the payment of the prompt portion of the share soon after the differences with her husband, which took place long before the institution of the suit, the plaintiff was not entitled to any decree.
This decision was reversed by this Court on the finding that the dower fixed was Rs. 40,000 and a gold mohur and that there was no satisfactory evidence that a part of the dower was prompt. The result was that a decree was passed in favour of the plaintiff for Rs. 6,666;8-8 on account of his admitted share in the dower of the deceased, Musammat Bibi Hamidan.
The defendant submits that the judgment of the High Court being a judgment of reversal and the decree directly or indirectly involving a claim or question to or respecting property of above Rs. 10,000, he is entitled, to a certificate as a matter of right. He also urges that the decision of the High Court has the effect of estopping the appellant by the rule of res judicata from agitating the same question in respect of the amount of their share in the dower which will be payable to the pro forma defendants when they will institute their suit. It is further urged that it is immaterial that in the present suit the pro forma defendants did not lay any claim to their share in the dower, and as a matter of fact those defendants have now instituted a suit for recovery of their share of the dower.
On behalf of the respondent it was urged that as the decree which has been passed in favour of the plaintiff is for a sum below Rs. 10,000, the value of the claim or question in the present case cannot, by any stretch of reasoning, be held to be above Rs. 10,000.
A number of cases were cited at the Bar, and I have examined a large number of cases which have clustered round this difficult question.
Speaking generally the authorities on the construction of this section can be placed under two broad heads: (1) cases in which it has been held that the final decree or order is appealable if the value of the property to which the claim or question relates and the rights in which are affected by the decision on such claim or question is Rs. 10,000 or upwards, whether or not loss or detriment to the value of Rs. 10,000 has accrued to the applicant as a result of the decree or order that has been passed—see amongst others Dalgleish, Shri Kishan Lal and Muhammad Ashgar. (2) cases in which it has been held that under section 110, Civil Procedure Code, it is the extent to which the decree or order has operated to the prejudice of the applicant that determines whether the decree or order is subject to appeal or not and whatever may be the value of the property in respect of which a claim or question is involved in the appeal no appeal lies under section 110 unless the value of the loss or detriment which the applicant has suffered by the passing of the decree or order, and from which he seeks to be relieved by His Majesty in Council, is Rs. 10,000 or upwards. The leading case is Subramania Ayyar followed in this Court in Gosain Bhaunath Gir. Reference may also be made to Radha Kunwar, DeSilva, Raoji Bhikaji and Nariman Rustomji Mehta. Their Lordships of the Judicial Commitee have approved the ratio decidendi of the Madras case of Subramania Ayyar in Gudivada Mangamma, Mukhlal Singh and Jogesh Chandra Roy.
In a recent decision of their Lordships in Bai Shevantibai a large number of these cases were again noticed by their Lordships. In this case the plaintiff's suit for partition of joint family property was dismissed by the courts below on the ground of limitation. Their Lordships held that the value of the subject matter in dispute on appeal to His Majesty in Council must be taken to be the value of the share of the joint family property in respect of which the appellant was claiming, and further that the question as to the title of the plaintiff to the share which was claimed in the joint family property did not become a question respecting the whole of the joint family property merely because if her title was established it would result in the joint family estate being partitioned.
If will be noticed that in the last Privy Council case the appellant to His Majesty in Council was the plaintiff. It is obvious that different consideration would arise where the applicant for leave to appeal to His Majesty in Council is the defendant—see Ram Kumar. Vankatathirisami Naidu and the observations of Page, C.J in Damsons Bank, Limited. The question is not free from difficulty as has been pointed out in a recent decision of the Calcutta High Court in Md. Nurul Absar which comes nearest to the situation in the present case. In that case a common manager of an estate was appointed under section 95 of the Bengal Tenancy Act. The purchaser of a four-anna share in the estate instituted a suit against the common manager to which all the co-sharers were made parties for recovery of possession of his share after a declaration that the common manager was illesally appointed. The suit was decreed by the Subordinate Judge but was dismissed by the District Judge. On Second appeal to the High Court, the decision of the Subordinate Judge was restored, and it was held that the appointment of the common manager was illegal. It was admitted that the value of the subject; matter of the suit, namely the right of the manager to the four annas share, was only Rs. 2,900 although it was stated in the plaint that the value of the share of the plaintiff was Rs. 10,020. The defendant asked for leave to appeal to His Majesty in Council. The learned Judges after examining some of the cases to which I have referred came to the conclusion that the effect of the judgment of the High Court was that the appellant could no longer manage as common manager any share or any of the seventeen items of property of which the value was undoubtedly more than Rs. 10,000. They also pointed out that the co-sharers of the plaintiff in the properties which he claimed and all the proprietors of the remaining fifteen items of property of the estate were all parties to the suit and were also parties to the application and that they could on the basis of that judgment ask the appellant to walk out and observed: “If the appellant succeeds before the Judicial Committee of the Privy Council the maun of Haripada Biswas as also of those remaining owners of the Khanpore Estate to manage their property in khas would be negatived. Their shares are outside the subject-matter of the suit, which relate to Gopinath's share only, but the judgment of this Court directly involves the question of the management of their shares also. We accordingly hold that the case comes within the second paragraph of section 110.”
The respondent, on the other hand, relies upon the case of Khajeh Sayedulla. In that case some of the heirs of a deceased person instituted a suit for payment of their shares of the monthly allowance on the allegation that the allowance due to all the heirs was Rs. 187 per month but that the share due to the plaintiffs was Rs. 33-2-0 and they valued their suit at Rs. 5,300 which was also the value of the appeal to the High Court. The suit was dismissed by the courts below and the plaintiffs then applied for leave to appeal to the Privy Council on the footing that the capitalised value of the total amount of the allowance due according, to their allegation to all the heirs was over Rs. 10,000, but those heirs never put forward any claim. It was held that although the other heirs were parties to the suit, the decision did not involve directly or indirectly their interests and the applicants were not entitled under the second paragraph of section 110, Civil Procedure Code, to fall back upon the value of anything beyond their own share. It will be Observed that in this case the plaintiff was the appellant and not the defendant, and, therefore, this decision does not run counter to the case in 50 Calcutta Weekly Notes, 255.
The respondent also relied upon the case of this Court in Mathura Prasad Singh. In that case the plaintiff sued nip in a mortgage-bond of which the total amount at the date of the plaint was Rs. 8,622, and if the plaintiff had succeeded the amount on the date of the decree would have been over Rs. 10,000. But the suit was dismissed. The plaintiff appealed to the High Court and his appeal succeeded and he got a decree of over Rs. 10,000 up to the date of the decree of the High Court. The defendant applied for leave to appeal to his Majesty in Council and it was contended on behalf of the plaintiff that the amount or value of the subject matter of the suit in the court of first instance was not Rs. 10,000 or upwards, but this argument was negatived by the learned Chief Justice in these words: “I am unable to accept this view. I think that the proper construction to be placed upon that section, in so far as it relates to the amount or value of the subject-matter of the suit, must be taken to be the amount or value which the plaintiff either obtained or, had he been successful, would have obtained in his suit at the date when the decree was passed.” I do not see how this case helps the respondents.
Having given my most anxious consideration to this question, which is not free from difficulty, I am on the whole of opinion that in this case I should follow the view taken by the Calcutta High Court in the case of Md. Nural Absar and grant the certificate as asked for. The question itself being a question of difficulty, it induced me to grant the certificate so that their Lordships may decide this question authoritatively for the guidance of the High Courts in India.
The result is that the applicant will be granted a certificate that the requirements of section 110 of the Code of Civil Procedure are satisfied.
Each party will bear his own costs in this Court.
Mukharji, J.:— I agree.
S.H
Leave granted.
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