Kunwarlalsingh v. Umadevi

JUDGMENT

1. In 1933 one Tilaksingh brought a suit for partition against his brothers Rao Bahadur Kuwarlalsingh and Diwakarrao. In 1939 he obtained a decree for partition. The defence in that suit by Rao Bahadur Kuwarlalsingh and his brother Diwakarrao was that the estate, which is a large zamindari one, was impartible and descended to the eldest brother who in this case was Kunwarlalsingh, and in the alternative that Tilaksingh who was the youngest son had executed a deed in 1930 whereby he agreed to accept 17 villages as maintenance and not to dispute Kunwarlalsingh's title to the whole of the estate and that this was binding as a family arrangement. In the appeal filed in 1939 in this Court these points are reiterated and are the basis of the appeal. In 1940 Diwakarrao, who was a co-appellant, asked to be substituted as respondent and this was allowed. In the following October the plaintiff-respondent died, and an application was made by his wife and his son to be brought on the record as the legal representatives of the deceased. This interlocutory matter came before a single Judge (the appeal of course lying to a Divisional Bench, and the memorandum of appeal bears a court-fee stamp of Rs. 5000) and was opposed by Rao Bahadur Kunwarlalsingh. In an exhaustive and detailed judgment Niyogi, J., decided that they were the legal representatives of the deceased plain-tiff-respondent and ordered them to be brought on the record as such. Against this Rao Bahadur Kunwarlalsingh preferred an appeal under the provisions of Cl. 10, Letters Patent. The office took an objection that in view of the decision in I.L.R (1943) Nag. 4531 following the previous Divisional Bench decision in L.P.A No. 3 of 19402 no such appeal lay. The case is now before us, after notice having been given to the non-applicants, for the determination of the question whether such an appeal does or does not lie. The merits of the appeal have not been considered.

2. This Court has held consistently following the dictum of their Lordships of the Privy Council in A.I.R 1925 P.C 1553 that an appeal of this nature will not he as the interlocutory order appealed from is not a decree, and that the term “judgment” referred to in the Letters Patent means in civil cases a decree.

3. In I.L.R (1943) Nag. 453 reference was not made to a decision intermediate between that case and L.P.A No. 3 of 1940 namely I.L.R (1942) Nag. 41.4 In it a Divisional Bench laid down that although the question what a judgment meant was not considered in I.L.R (1939) Nag. 1245 as the point did not really arise for determination, it must now be held in view of the dissenting judgment of Sulaiman, J., in A.I.R 1939 F.C 436 at p. 47 that it must be taken as settled that the term “judgment” in the Letters Patent of a High Court means in civil cases a decree and not a judgment in the ordinary sense. This is the view of the Rangoon High Court where it was so held by a Full Bench of seven Judges in 13 Rang. 457.7 It is also the view of the Allahabad High Court laid down by a Full Bench of three Judges in 57 ALL. 9838 and reiterated by a Divisional Bench in I.L.R (1937) ALL. 381.9 This view has been expressly dissented from in the Lahore High Court where a Full Bench of three Judges in 23 Lah. 49110 expressly dissented from the view taken in 13 Rang. 457 and the exposition of the law by Sulaiman, J., in A.I.R 1939 F.C 43 was discarded on the ground that the other two members of the Federal Court did not appear to have accepted the view enunciated by him. This view is strongly pressed before us on the ground that it was not available to counsel at the time when I.L.R (1943) Nag. 453 was decided and that consequently the decision said to be based on the remark in that case to which one of us was a party “No case after the decision of the Rangoon High Court in 13 Rang. 457 taking a different view has been brought to our notice” requires reconsideration. It has also been urged that the views of the Bombay, Calcutta and Madras High Courts do not follow this rigid interpretation but proceed on the reasoning of Couch, C.J, in 8 Beng. L.R 43311 as modified by the decision of the Madras High Court in 35 Mad 1.12 This view is summarised by White, C.J (on p. 7):

“The heat seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent. I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained)—e.g, an order on an application for an interim injunction, or for the appointment of a receiver is a “judgment” within the meaning of that clause.”

4. And it is this part of the judgment that is quoted as the authority and it is this view which is particularly pressed before us. It is to be noted that in none of the Bombay cases where reference to the dictum of their Lordships of the Privy Council could have been made is there any reference to this dictum. Neither is there any in the one Calcutta case which has been cited before us, namely 61 Cal. 670.13 The only reference there is on p. 690 where Panckridge, J., stated that in the case before the Divisional Bench which arose in appeal from original civil jurisdiction concerning an order refusing to stay a suit to which the provisions of Section 10 of the CPC, applied, it was a judgment within Cl. 15 (corresponding to Cl. 10 of our High Court) and was appealable and he considered the judgment in 57 Bom. 36414 conclusive. Neither this case nor the slightly earlier one in 55 Bom. 45215 refers to any of the decisions of the Privy Council to which this Court referred in I.L.R (1943) Nag. 453. In the later case they held that a decision under Section 10 of the CPC, determined the rights of the plaintiff to sue in the Bombay High Court and that a decree on such a decision was not merely procedural but went to the jurisdiction of the Court and as such was a judgment within Cl. 15, Bombay Letters Patent and therefore appealable. In the earlier case they held that an order dismissing a petition to set aside an award made under the Arbitration Act on the original side was also a judgment within the meaning of that clause. In A.I.R 1943 Mad. 54116 the question was whether an order by a Judge of the High Court committing a person to prison for contempt was a criminal matter or a civil matter. It was held that it was a civil matter and without discussion it was said “it is clear that the order in this case falls within the definition of ‘judgment’ given by the Full Bench in 35 Mad. 1, ” and the Court then proceeded to decide whether the matter was a criminal one or a civil one. The trend of the decisions in Bombay and Calcutta with which disagreement is expressed in 13 Rang. 457 is that in each case it is the duty of the Court to make up its mind whether the particular decision against which an appeal under that particular clause of the Letters Patent is preferred is a judgment or no, vide, 44 Cal. 80417 and 27 Bom. L.R 1496.18 These decisions are of course prior to any pronouncement by their Lordships of the Privy Council, but it appears that this is the practice in Bombay and Calcutta and that it is based on the principle enunciated by White, C.J, in 35 Mad 1. It is that principle which we are asked by the appellant to follow here, and it is contended that the decision, on those principles, is an appealable one.

5. Prior to the decision of the Full Bench of the Allahabad High Court in 57 ALL. 983 attempts were made to distinguish the decision in A.I.R 1925 P.C 155. The first case is 48 ALL. 684, 19 and with all deference we are not able to follow the ratio decidendi in that case since we have been unable to find any such difference in the material clauses of the Letters Patent of the respective High Courts which would warrant a distinction being drawn. In 55 ALL. 32620 the Privy Council decision was distinguished on the ground that their Lordships were considering Cl. 39 and not Cl. 15, Bombay Letters Patent, and that indeed is the contention in the Lahore High Court and is the view that is pressed on us here. That view had also been expressed earlier in the Lahore High Court in 10 Lah. 132, 21 and the latest attempt to distinguish it on the same lines is to be found in 23 Pat. 24.22 Now it will be noted that in all the cases we have cited where the Privy Council decision has been distinguished, except in 23 Lah. 491, that case alone has been cited by those urging that in order to be appealable under Cl. 10, Letters Patent a judgment connotes a decree. It may be permissible to interpret the dictum of their Lordships of the Privy Council in a particular way in a single case, but where that particular view has been expressed on more than one occasion even though the particular question of Cl. 10 (i.e Cl. 15 of the older High Courts) of the Letters Patent was not under consideration in the appeal itself we do not consider that any interpretation contrary to their Lordships' express words is permissible. Three cases have been cited and examined in 13 Rang. 457, in A.I.R 1939 F.C 43 and distinguished in 23 Lah. 491. They are the cases cited by us in I.L.R (1943) Nag. 453 and also in L.P.A No. 3 of 1940. With all respect we are unable to agree with the argument in 23 Lah. 491, and in particular with the passage which after reciting the opening sentence of Cl. 10, Letters Patent runs:

“If the word ‘judgment’ meant only a decree what would be the point of excluding a judgment in respect of a decree or order. It seems to me clear, therefore, that orders other than judgments in a decree are contemplated by Cl. 10, Letters Patent.”

6. We do not lay so much stress on the decision of their Lordships of the Privy Council in 47 Bom. 72423 at p. 735. We have, in another appeal, dealt more fully with that decision in 1944 N.L.J 499, 24 a decision which is about to be published in the Indian Law Reports, Nagpur series. We may mention that we have referred in that case to A.I.R 1925 P.C 155. But in addition to the latter case there is the Privy Council decision in 48 Cal. 48125 where at p. 488 Lord Sumner stated that ‘section’ 15 of the Letters Patent (corresponding to Cl. 10 of our Letters Patent) expressly provides for an appeal to the High Court in its appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction. It is true that the ultimate point for decision by their Lordships was not concerned with Cl. 15, Letters Patent of the Calcutta High Court, but it cannot be said, as is suggested to us, that Cl. 15 was absent from their Lordships' minds since the case actually arose out of an appeal made under that very clause in the Calcutta High Court itself; and it may reasonably be apprehended that what has been characterised in the Lahore High Court referring to A.I.R 1925 P.C 155, as a casual sentence which cannot be interpreted as applying to judgments in general under the Letters Patent, is so phrased since it was understood, as it was understood in 48 Cal. 481 for the reasons expounded at length by Sulaiman, J., in A.I.R 1939 F.C 43, that a judgment in the Letters Patent must mean not a judgment as defined in the Code of Civil Procedure but a judgment in its final definitive sense embodying a decree.

7. As has been observed not only in this Court but in other High Courts, the attempts to define what a judgment under the Letters Patent is have been exceedingly numerous. On no fewer than three occasions has a Divisional Bench of this Court decided that the word ‘judgment’ means decree, following, as expressed in L.P.A No. 3 of 1940, their Lordships of the Privy Council who “have dealt with the matter on three occasions and on each have stated that the word ‘judgment’ means a ‘decree’.” The learned counsel for the appellant has been unable to persuade us to indicate a view to the contrary and refer the matter to a Full Bench. We may also add that even on the assumption that we are not precluded from holding the decision of Niyogi, J. as appealable, the case would not fall within the test laid down by White, C.J, in 35 Mad. 1. That a decision by a single Judge of the High Court in a matter concerning the admission of legal representatives on the record is not appealable under the Letters Patent has been held by the Allahabad High Court in I.L.R (1937) All. 381 and by the Madras High Court in 56 Mad. 689.26 The Allahabad decision being subsequent to the Full Bench decision in 57 ALL. 983 flows from it, but that cannot be said of the Madras decision since the Madras High Court, although we have not been shown any decision on the point, clearly does not consider itself bound by the dicta of their Lordships of the Privy Council to which we have referred. Indeed we do not know that these cases have ever been cited before them. Nevertheless in 56 Mad. 689 Beasley, C.J, with the concurrence of Bardswell, J., held as follows:

“The question raised here is whether that order which was one ordering the respondent in this appeal to be brought on the record as the legal representative of the deceased original appellant is an appealable order or not. In my view, it is not. Applying the test applied by White, C.J, in 35 Mad. 1 this is certainly not an appealable order. That test has be often been referred to and I do not propose to restate it here. I may however summarise my reasons for saying that this is an order which is not appealable. An order to be appealable must of course be a judgment within the meaning of Cl. 15, Letters Patent. In my view, this is not a judgment which finally settles the rights of parties but has the effect of allowing litigation which is proceeding to further proceed to a final adjudication. The facts of the case here are that the deceased original appellant filed this appeal and whilst it was pending died. Then an application was made to bring on record the respondent as her legal representative. The question as to whether or not the respondent was the legal representative of the deceased original appellant depended upon the genuineness or otherwise of a will. That was a matter which came before our learned brother. He first of all considered whether the will was a genuine one or not and, having found that it was genuine, he brought upon the record the respondent, the person who by the will was established to be the legal representative of the deceased original appellant. What was the effect of the order? Upon the death of the original appellant the appeal would have abated if within the period allowed for doing so no legal representative of the deceased original appellant had been brought on the record. The result would have been that if no application had been made the appeal would have abated and the judgment of the lower Court would have stood in favour of the appellant here. The effect of the order made by our learned brother is that the final adjudication upon this matter is not stopped by the death of the deceased original appellant. On the contrary the order makes it possible for an adjudication upon the matter under the appeal.”

8. The facts are similar to those before us. Instead of the admission of the legal representatives turning on the genuineness of a will, here it turns on the validity of a marriage. Had they not been on record, the appeal against the deceased plaintiff-respondent would have abated and as in the Madras case the order of Niyogi, J. makes an adjudication on the question of the impartibility of the estate and the validity of the alleged family settlement possible. The decision is not one of finality or one that in any way goes to the root of the proceedings. The appellant's case based on impartibility and family settlement is that he is entitled to the whole of this large estate except for such portions as he some years ago consented to give to his brothers. If the appeal succeeds he gets the whole estate, and the fact that by the admission of the legal representatives on the record he will, if he loses, get one-third of the estate instead of one-half which he would have got in case of loss if they had not been brought on the record, is immaterial for the purpose of deciding the admissibility of the appeal. In the words of White, C.J the order of Niyogi, J. is ‘an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit,’ and is not a judgment within the meaning of the Letters Patent. The result is that we hold that the appeal is not admissible. The costs of this particular proceeding will be paid by the appellant, and we fix the pleader's fee at Rs. 75.

9. Order accordingly.