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Karusinga Kushansing Vs. Narsinha Rangrao Patil - Court Judgment

LegalCrystal Citation
Decided On
Case NumberFirst Appeal No. 163 of 1930
Reported inAIR1938Bom121; (1937)39BOMLR1287
AppellantKarusinga Kushansing
RespondentNarsinha Rangrao Patil
.....of two courts : british indian and foreign courts-whether court in british india has jurisdiction-berars-foreign territory-courts in berars whether foreign courts-transfer of property act (iv of 1882), sections 6 & 53-spes successionis-release by hindu reversioner in favour of widow-whether binding on reversioner after death of widow-lis pendens-doctrine to apply only where court has jurisdiction.;section 17 of the civil procedure code, 1908, cannot give a court jurisdiction to entertain a suit unless the defendant is in possession of some property within the jurisdiction of that court.;in order that section 17 of the civil procedure code should apply, it is necessary that the 'courts' referred to in that section must be courts in british india. where a suit is to obtain perpetuity. effect was given to this arrangement by an order in council made under the indian foreign jurisdiction act of 1890. the question before the court in this case was whether a certain law promulgated by the governor general in council called the berar tenancy act was ultra vires. the effect of the decision is that the government of india have power to legislate in the berars by virtue of the authority given by the foreign jurisdiction act. lord atkirt at p. 322 says :-there can be no doubt at all that the king in council has power, in respect of foreign territory within the definition of that clause, either to legislate himself by orderl in council or to make provision for legislation by delegating that legislative authority to such a person or body as he may denote.....

Broomfield, J.

1. This is an appeal from a decree of the First Class Subordinate Judge of Sholapur allowing the plaintiff-respondent's suit for possession of two items of property : (a) a temple and house at Pangri in the Barsi Taluka of the Sholapur District, and (b) two fields at Ratanpur in Amraoti District, Berar. The plaintiff has alleged, and it is admitted, that these properties belonged to her father Balkrishna Vyankatesh, who died without other issue in 1905. His widow Haribai, plaintiffs step-mother, died in 1927, and the plaintiff claims to have become entitled to the properties on her death. This appeal has been brought by defendant No. 9, who purchased the Ratanpur lands from defendant No. 1 pendmte lite. Defendant No. 1 is Haribai's brother's son and the Ratanpur lands are in his possession from 1908 when Haribai gave them up to him by the ordinary revenue process of rajmama and kabulayal.

2. The principal defences to the suit, which arise also in this appeal, were (1) that the Court at Sholapur had no jurisdiction because none of the defendants was in possession of the property at Pangri and the property in the Berars is not in British India, and (2) that the plaintiff's claim is barred by reason of her having relinquished all her rights in respect of the Ratanpur lands to Haribai in 1912.

3. The question of jurisdiction depends on the application of Section 17 of the Civil Procedure Code, which provides :

Where a suit is to obtain relief respecting, or compensation for wrong to, immoveable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate.

It is obvious, to begin with, that this section cannot give a Court jurisdiction unless the defendants are in possession of some property within the jurisdiction of that Court. The appellant's case is that the temple at Pangri is a public one and none of the defendants was in possession at the time of he suit. His learned Counsel relies on certain admissions made by the plaintiff herself in cross-examination. Though in her examination-in-chief she had asserted that the temple belonged to her father and, that it was in the possession of defendant No. 1 and defendant No. 8, who was placed there by defendant No. 1, in cross-examination she said :-

The panchas look to the management of the temple at Pangri. There are lands; which are given to the temple. Those lands are given by my father himself. My father and mother appointed the panchas and the lands are in the possession of the panchas. The panchas celebrate the festivals of the temple and look after the management. The panchas appoint a Brahmin worshipper and get the worship done. My father built this temple and it has become now public. The panchas that were appointed were given the possession of the temple.

Immediately after, still in cross-examination, she said that Tanubai (i.e. defendant No. 8) had been in possession for two or three years up to the time of the suit : and in her re-examination, when her attention was drawn to the inconsistency of her statements, she said that her memory had failed her and that defendant No. 1 had been in the possession.

4. The plaintiff is a very old lady-seventy years old at the time when her evidence was taken on commission. She has also lost her sight. The learned trial Judge was not disposed to attach any importance to the admissions which were elicited from her in cross-examination. He thought that these statements were made ' in confusion and ignorance,' and relying on the other evidence in the case he found that defendant No. 1 and defendant No. 8 were; in possession of the Pangri property at the date of the suit, and that the temple is not a public temple. As the learned Judge has pointed out, defendant No. 1 in his written statement did not unequivocally deny his possession of this property. In his deposition he did no doubt deny having ever been in possession of it, but he made a number of statements which seem to be fairly obviously untrue. He asserted that Balkrishna's brother Narayan was in possession, but though this man was available and actually attended the Court on one occasion defendant No. 1 did not call him as a witness. His statement that he got the Ratanpur lands from Narayan and his attempt to show that Narayan and Balkrishna were joint indicate that he is not a witness, who can be trusted. The plaintiff has examined two witnesses who appear to be independent and reliable persons to prove the fact of the possession of the Pangri property by defendant No. 1 and defendant No. 8. Exhibit 12V Pandurang, is a relation of defendant No. 8. He deposes that the temple was built by Balkrishna, that Haribai lived in it after his death, that both the temple and the house were afterwards occupied by defendant No. 1 for 7-8 years, that defendant No. 1 manages it and that defendant No. 8 resided in it with defendant No. l's permission. Digambar, exhibit 14, also deposes to the possession of defendantNo. 1. There is also the evidence of the plaintiff's son. On the whole, we see no good reason for differing from the conclusion of the trial Judge on this question of fact.

5. But the appellant is on much firmer ground in our opinion when he contends that the Court had no jurisdiction as to the property in Berar. It has been held by the Privy Council in Nilkanth Balwant Natu v. Vidya Norasink Bharati (1930) L.R. 57 IndAp 194, : 32 Bom. L.R. 1527, that it is necessary for the application of Section 17 that the Courts should be Courts in British India. ' British India ' is defined in the General Clauses Act (X of 1897), Section 3, Clause (7), as meaning all territories and places within Her Majesty's dominions which are for the time being governed by Her Majesty through the Governor General of India or through any Governor or other officer subordinate to the Governor General of India. The definition is the same as in Section 18 of the Interpretation Act (52 & 53 Vic. c, 63). The history of the territory known as the Berars is given in the judgment of the Privy Council in Dattatraya Krishna Rao Kane V. Secretary of State for India. (1930) L.R. 57 IndAp 318. : 33 Bom. L.R. 6. There was first of all a treaty in 1853 by which His Highness the Nizam assigned a number of districts including the Berars to the exclusive management of the British Resident at Hyderabad. In 1860 there was a further treaty between Her Majesty Queen Victoria and His Highness the Nizam, by which it was provided that the Berars should be held by the British Government in trust. In 190Z a permanent arrangement was made between the Government of India and His Highness the Nizam, whereby the Berars were leased to the British Government in perpetuity. Effect was given to this arrangement by an Order in Council made under the Indian Foreign Jurisdiction Act of 1890. The question before the Court in this case was whether a certain law promulgated by the Governor General in Council called the Berar Tenancy Act was ultra vires. The effect of the decision is that the Government of India have power to legislate in the Berars by virtue of the authority given by the Foreign Jurisdiction Act. Lord Atkirt at p. 322 says :-

There can be no doubt at all that the King in Council has power, in respect of foreign territory within the definition of that clause, either to legislate himself by Orderl in Council or to make provision for legislation by delegating that legislative authority to such a person or body as he may denote in the Order in Council.

6. At p. 324 the learned Judge pointed out that the legislation in question does not purport to affect His Majesty's subjects at all but has relation to persons who are not subjects of His Majesty but subjects of His Highness the Nizam of Hyderabad. The case therefore is the clearest possible authority for holding that the Berars are foreign territory and the inhabitants thereof are the subjects of the Nizam.

7. In the course of the argument of this appeal it was pointed out to us that in 1913 the Governor General in Council issued a notification by which a large number of statutes including the Civil Procedure Code was extended to the Berars. But this was done in the exercise of the powers conferred by the Indian Foreign Jurisdiction Order in Council of 1902, and the issue of the notification under those powers was in itself an indication that the Berars are foreign territory and not included in British India. It has been held by the Judicial Commissioner's Court in Nagpur that the Courts in British India have no jurisdiction to pass a decree in respect of property in the Berars which is a foreign territory : Bajirao Vithoba v. Sardarmal AIR [1935] Nag. 192, and G.T. Firm V.D.J. Co., Bombay AIR [1935] Nag. 250. Under the circumstances it is sufficiently clear that the Berars are not within the definition of ' British India ' in the General Clauses Act, and Mr. Kane who appears for the respondent has conceded that that is the position.

8. Mr. Kane's argument is that even though the Berars do not form part of British India, nevertheless this suit is competent under Section 17 of the Civil Procedure Code. In support of his argument he relies on the definition of a foreign Court in Section 2, Clause (5), of the Code. ' Foreign Court' means a Court situate beyond the limits of British India which has no authority in British India and is not established or continued by the Governor General in Council. It is conceded that the Courts in the Berars are situated beyond the limits of British India and also that they can have no authority in British India, but as they are established and continued by the authority of the Governor General in Council, the argument is that all the requirements of the definition are not satisfied and strictly speaking Courts in the Berars are not foreign Courts. The difficulty in Mr. Kane's way is the case of Nilkanth Balwant Natu v. Vidya Narsinh Bharati to which I have already referred. What was held in that case was not that Section 17 does not apply in the case of foreign Courts but that its application is limited to Courts in British India. It is urged that that case should be confined to its own facts. The Court was there dealing with the Kolhapur State, the position of which, it is argued, may1 be different from that of the Berars, and reliance is placed on the fact that, the Civil Procedure Code applies in the Berars. It has been pointed out in Syed Imam v. Mohomed Shikcmdar (1908) 4 N.L.R. 61, that although the Code applies it does not apply proprio vigore but is only a replica of the Code set up by the executive order of the Government of India. Although their Lordships of the Privy Council in their judgment in Nilkant Balwant's case say that the words in Section 17 ' within the jurisdiction of different Courts ' must mean within the jurisdiction of different Courts to which the Code applies, that is to say, Courts in British India, it is clear from the reasoning which precedes that statement that what was meant was the Courts to which the Code applies pwprio vigore, and; the mere fact that the Code has been applied under the Foreign Jurisdiction Act would make no difference to the application of Section 17 of the Code. What their Lordships relied on was the preamble to the Code and the provisions of Section 1. In our opinion, therefore, the learned advocate has not been able to distinguish this case

9. His argument that the Courts in the Berars are not foreign Courts is also apparently opposed to another Privy Council case, Ananta Padmanabhaswami v. Official Receiver of Secunderabad . That was concerned with the Court of the District Judge at Secunderabad. Presumably that Court is also a Court established and continued by the authority of the Governor General in Council. Mr. Kane at any rate did not suggest the contrary. But what their Lordships say at p. 172 is :-.the British Cantonment in Secunderabad still remains part of Hyderabad State and the property of the Nizam. The administration of justice according to British enactments by the District Court established there does not render the orders of that Court anything but the orders of a foreign Court in relation to the Courts of British India.

On this point of jurisdiction, therefore, the appeal succeeds, and the finding on this point is enough to dispose of the appeal, for the appellant is only interested in the Ratanpur property, with which, according to our view, the Sholapur Court had no jurisdiction to deal.

10. It is not really necessary to consider the effect of the plaintiff's relinquishment in 1912, but as the question has been discussed by the trial Judge and argued by the learned Counsel for the appellant here it may be referred to briefly. What happened was that in 1912 the plaintiff, in consideration of the delivery to her of one survey number at Ratanpur, relinquished her right in respect of three survey numbers in favour of Haribai. She executed a formal deed of release, which is exhibit 19, in which it was recited that Haribai might deal with the property thereafter without any objection by the plaintiff. The deed was attested by the plaintiff's husband. The trial Judge has disposed of this point very briefly. He says :

The release is not binding on plaintiff as it is invalid under Section 6 of the Transfer of Property Act. Haribai, the widow of Balkrishna, succeeded to the property as heir of her husband. Plaintiff was then the next reversioner and had nothing more than spes successions. That document is accordingly invalid, vide 24 Bom. L.R. 351, I.L.R. 50 Cal. 929 and 6 Pat. L.J. 604.

Mr. Thakor for the appellant has relied on Basappa v. Fakiretppa I.L.R. 1921 Bom. 292, 23 Bom. L.R. 1040, and Akkawa v. Sayodkhan Mithekham I.L.R. (1927) Bom. 475, 29 Bom. L.R. 386. In the former case a gift made by a Hindu widow of a portion of her husband's property in favour of her husband's brother's grandson with the consent of the next reversioner was held valid, on the principle of estoppel, as against the particular reversioner who consented to it. In the latter case, which is a decision of a full bench, it was decided that where a Hindu widow sells a part of her husband's property without legal necessity, but with the consent of the next presumptive reversioner as evidenced by his joining in the deed, the reversioner cannot, having regard to his election:, impugn the validity of the sale. Marten C.J., who delivered the judgment of the full bench, agreed with the conclusion arrived at in Basappa v. Fakirappa but said that he preferred to base his decision on the ground of election and not on the ground of estoppel.

11. In my opinion these authorities do not help the appellant in any way. They are cases of alienation by a Hindu widow consented to by the next reversioner. A Hindu widow is owner, though a limited owner, of her husband's estate, and has power of alienation subject to certain restrictions. An unauthorised alienation may be set aside by the reversioner but it is voidable and not void ab initio. If the next reversioner makes himself a party to the alienation then on the authority of those cases he cannot impugn it, and it is binding on him because; in cases of this kind considerations of estoppel or election arise which are entirely independent of or not inconsistent with' Section 6 of the Transfer of Property Act. There is in fact no transfer by the reversioner of his interest. By consenting to or taking part in the transaction by the widow he gives legal effect to that with the result that his own, interest never materialises at all. But that is not at all the position here. The transaction in 1912, cannot be treated as anything else than a relinquishment by the plaintiff of her reversionary interest in the properties in suit in favour of Haribai. It comes within the mischief of Section 6 of the Transfer of Property Act and the cases relied on by the learned trial Judge govern the case.

12. Mr. Thakor tries to bring the case within the ambit of such cases as Akkawa V. Sayadkhm Mithekhm and Basappa v. Fakirappa by, treating the relinquishment of 1912 as part and parcel of the rajinama and the kabulayat transaction four years earlier. He argues that in effect the plaintiff consented! to the alienation, by Haribai to defedant No. 1. But in fact no connection between the two transactions has been proved and there does not appear to be any evidence that the plaintiff was even aware of the rajinama. There is no ground for holding, therefore, that the plaintiff's right to sue is barred.

13. There is one point taken by Mr. Kane which should be briefly referred to. Defendant No. 9 was not originally a party. He purchased the Ratanpur lands from defendant No. 1 in January, 1928, the suit having been filed in December, 1927. Mr. Kane says that he is bound by the doctrine of Us pendens, and as defendant No. 1 has not appealed, defendant No. 9 has no right of appeal. He relies on Section 52 of the Transfer of Property Act which at the material time provided that during the active prosecution in any Court of a, contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. It is sufficiently obvious that the transfer from defendant No. 1 to defendant No. 9 does not affect the plaintiff's right in any way. The Court not having jurisdiction to deal with the Ratanpur lands, the plaintiff has no right which she can assert in the Courts in this presidency. As defendant No. 9 was made a party and as a decree has been passed against him, it is clear that he has a right of appeal.

14. The result of our findings is that the decree must be limited to the property at Pangri. The trial Court's decree so far as it is for possession of that property only is hereby confirmed as against defendant No. 1 and defendant No. 8. The suit against the other defendants will stand dismissed with costs. There will be an inquiry as to mesne profits as to the Pangri property only from the date of the trial Court's decree till delivery of possession or three years from the date of this decree.

15. The plaintiff and defendant No. 1 and defendant No. 8 will pay their own costs in the trial Court. The appellant will get his costs of the appeal from respondent No. 1.

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