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Watsalabai and ors. Vs. Babutai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberMisc Civil Appln. No. 12 of 1972
Judge
Reported inAIR1976Bom58; 1975MhLJ561
ActsConstitution of India - Article 133(1); Constitution (Amendment) Act, 1972 - Sections 3(2)
AppellantWatsalabai and ors.
RespondentBabutai and ors.
Appellant AdvocateS.N. Kherdekar, Adv.
Respondent AdvocateC.P. Kalele, Adv.
Excerpt:
.....the amendment - the court ruled that according to section 3(2) of the amendment act, 1972, no right of appeal was available on account of the existence of the claim of more than twenty thousand rupees therefore, the application was held liable to be rejected.;b) the application for leave to appeal to supreme court was filed in a case involving substantial question of law - the court held that the question whether the respondents were the legitimate sons of the appellant was a question of fact - the court further rejected the said application - - the judgment of the trial court was varied and as such there was a judgment of reversal and on that ground under the old article 132(1)(a) there was clearly a right of appeal available to the applicants. kherdekar submits that in both.....lalit, j. 1. one wamanrao ingle was possessed of considerable property, he filed special civil suit no. 6-a of 1958 in the court of the civil judge. senior division amravati. this suit was mainly for a declaration that the respondents nos. 2 to 5 in their turn filed another suit against wamanrao and others for partition. they claimed to be the legitimate sons of wamanrao and claimed that the properties involved in that suit were joint family properties. in the capacity of the sons of wamanrao they claimed shares in the joint family properties. in their suit their allegation was that there were a number of alienation's made by wamanrao to various defendants which were not supported by legal necessity. some of the transactions were also challenged as being not supported by any.....
Judgment:

Lalit, J.

1. One Wamanrao Ingle was possessed of considerable property, He filed Special Civil Suit No. 6-A of 1958 in the Court of the Civil Judge. Senior Division Amravati. This suit was mainly for a declaration that the respondents Nos. 2 to 5 in their turn filed another suit against Wamanrao and others for partition. They claimed to be the legitimate sons of Wamanrao and claimed that the properties involved in that suit were joint family properties. In the capacity of the sons of Wamanrao they claimed shares in the joint family properties. In their suit their allegation was that there were a number of alienation's made by Wamanrao to various defendants which were not supported by legal necessity. Some of the transactions were also challenged as being not supported by any consideration. These suits were disposed of by the Civil Judge, Senior Division. Amravati by a common judgment . Special Civil suit No. 6-A of 1958 which was filed by Wamanrao was decreed where as Special Civil Judge. Senior Division .Amravati by a common judgment. Special Civil suit No. 6-A of 1958 which was filed by Wamanrao was decreed, where as Special Civil Suit No 11 of 1960 which was filed by the respondents Nos. 2 to 5 came to be dismissed. The common finding in these two suits was the respondents Nos. 2 to 5 were not the legitimate sons of Wamanrao and consequent on this finding it was held in Special Civil Suit No. 6-A of 1958 which was filed by Wamanrao was decreed, whereas Special Civil Suit No 11 of 1960 which was filed by the respondents Nos. 2 to 5 were not the legitimate sons of Wamanrao, and consequent on this finding it was held in Special Civil Suit No. 6-A of 1958 that Wamanrao was entitled to a declaration prayed for by him in that suit. The suit for partition by the respondents Nos. 2 to 5 came to be dismissed as it was found that they had no title to the joint family properties on account of the finding of legitimacy going against them.

2. Against these decrees two first appeals were filed in this Court. First Appeal No. 52 of 1962 was filed against the decree in Special Civil Suit No. 6-A of 1958 was directed against the decision in Special Civil suit No. 11 of 1960. These two appeals came up for hearing before a bench of this Court and were disposed of on 23-7-1971. It was found by the Division n Bench of this Court that the respondent Nos. 2 to 5 were the legitimate sons of Wamanrao. on account of this finding, Special Civil Suit No. 6--A of 1958 which was filed by Wamanrao came to be dismissed and the appeal filed in that behalf i.e. First Appeal No. 52 of 1962 was allowed. Consequent upon the finding about legitimacy the Division Bench felt that it was necessary to decide the other issues involved in Special Civil Suit No. 11 of 1960. The Division Bench, therefore, made an order of remand. In that suit, the Division Bench set aside the finding on issues Nos. 5 and 6 which were framed in the trial Court and held that the properties involved in that suit were joint family properties. It also felt that it was necessary to record findings with regard to some of the transactions made in favour of the defendants Nos. 7,8,9,22 and 23 in Special Civil Suit No. 11 of 1960. It, therefore remanded the matter to the trial Court for a decision in respect of those transfers.

3. After the matter was remanded to the trial Court the transaction of the defendant No. 22 was not challenged. The learned trial Judge framed two issues and those issues were:

'(1) Whether the defendants Nos. 7,8,9 and 23 prove that the transfers were without consideration ?'

On account of those two issues there was a further trial in the Court of the Civil Judge. Senior Division. Amravati, and ultimately on 30-4-1973 findings were recorded by him against the defendants Nos. 7,8,9 and 23. These findings were certified to this Court and the Division Bench by its judgment dated 18th/26th September 1974, confirmed those findings, and accordingly passed a decree in consonance with the previous judgment of the High Court and the findings recorded after the remand.

4. Misc. Civil Appln. No. 12 of 1972 is an application asking for a certificate for leave to appeal No. 52 of 1962. The application was filed on 19-9-1971. Rule was issued on this application have filed their replies. Even before the findings were given in First Appeal No. 6 of 1964e another leave application was filed with a prayer for a certificate of fitness for appeal to the Supreme Court and that application for amendment is placed for hearing along with the two other applications. We allow the applications for amendment and thereby Misc. Civil Application No. 13 of 1972 will stand amended. Misc. Civil Application NO. 13 of 1972. is for final hearing for consideration of the question as to whether a certificate should be granted under Article 133(1) of the Constitution. Misc. Civil Application No. 13 of 1972 is only for admission whether rule in that application should be given or not. Since the ;questions involved in those two applications are to a common nature we propose to dispose of both the applications by a common order.

5. Both these applications were filed on 18-9-1971 . In these applications the averment is that the decree passed by the trial Court have been reversed and the claim involved in both these applications is more than twenty thousand rupees. It was, therefore prayed that certificates of fitness could be issued under Art. 133(1) (a) of the Constitution of India. as it , stood before 27-2-1973f Now, it is true that these applications were made before the passing of the Constitution (Thirtieth Amendment )Act. 1972. On the date when these applications were filed the law relating to an appeal to the Supreme Court in civil matters was governed by Art 133 of the Constitution and under Art. 133(1)(a) there was a right of appeal in a case where.

' the amount or value of the subject matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees'.

It is not disputed that the claim involved in the case in the trial court was above twenty thousand rupees. That was the claim in the appeal also, and if a certificate were to be given before the Constitution (Thirtieth Amendment) Act 1972 was passed the claim in the appeal to the Supreme Court would have been over rupees twenty thousand. The judgment of the trial Court was varied and as such there was a judgment of reversal and on that ground under the old Article 132(1)(a) there was clearly a right of appeal available to the applicants.

6. However, the situation was changed on account of the passing of the Constitution (Thirtieth Amendment ) Act. 1972. This amendment came into force on 27-2-1973. Section 2 of this Amendment Act, provides for the substitution of the old Article 131(1) now reads:

' An appeal shall lie to the supreme Court from any judgment, decree of final order in a civil proceeding a High Court in the territory of India if the High court certifies-

(a) that the case involves a substantial question of law of general importance and

(b) that the case involves a substantial question of law of general importance and

(c) that in the opinion of the High Court the said question needs to be decided by the Supreme Court'.

It is, therefore, clear that after the amendment, there is a right of appeal only when the High Court certifies that the case involves a substantial question of law of general importance and that question in the opinion of the High Court is such as needs to be decided by the Supreme Court. It is clear that after 27-2-1973 there is no right of appeal on account of the fact that the subject-matter of the dispute is worth more than twenty thousand rupees. That right of appeal flowing on account of claim being over twenty thousand rupees is no more available after the amendment of Art. 133(1). On account of the substitution of Art. 133(1) it is not possible for the High Court to give a certificate that the proposed appeal to the Supreme Court involves a claim of more than twenty thousand rupees. It must, therefore, follow after the Constitution (Thirtieth Amendment ) Act 1972. there is no right of appeal on account of the claim in a litigation which is worth more than twenty thousand rupees.

7. However, Mr. S.N. Kherdekar, learned advocate for the applicants argues that in the present case the appeal was decided by the High Court before the Constitution (thirtieth Amendment) Act . 1972. was passed. He also submits that the application for leave to appeal was filed on 18-9-1972. and that application is still pending. He submits that since the application was made before the Constitution (Thirtieth Amendment) Act. 1972, was passed the law which will be applicable to the present case will be the old Article 133(1). He submits that under the old provisions of Article 133(1) an automatic right of appeal was available in a case where the subject-matter of the dispute was over twenty thousand rupees and where the High Court had varied the decree passed by the trial Court. Mr. Kherdekar submits that in both these applications the decrees were reversed and since the claim is of more than twenty thousand rupees, the requirement of the old Article 133(1) are satisfied and as such it is obligatory on us to issue a certificate of fitness. It is not possible for us to accept this submission of Mr. Kherdekar. Though both these applications for leave to appeal to the Supreme Court were filed before Art. 133(1) of the Constitution was amended. It has to be noted that no certificate has been under Article 133(1) before the Constitution (Thirtieth Amendment ) Act. 1972 was passed. Today in fact these applications are placed before us for consideration of the question as to whether a certificate should be given or not. Section 3(1) of the Constitution (Thirtieth Amendment) Act 1972 provides:

'Nothing in this Act shall affect-

(a) any appeal under sub-clause (a) or sub-clause (b) or sub-clause (c) of clause (1) of Article 133 of the Constitution which immediately before the commencement of this Act was pending before the Supreme Court: or

(b) any appeal preferred or on after the commencement of this act against any judgment decree or final order in a civil proceeding of a High Court by virtue of a certificate given by the High Court before the commencement of this Act under sub-clause(a)or sub-clause (b) or sub clause (c) clause (1) Article 133: and every such appeal may be heard and disposed of or as the case may be entertained, heard and disposed of by the Supreme Court as if this Act had not been passed'.

This section shows that the application of the Amendment Act is excluded in two cases, namely, (i) a case where a an appeal is already pending under Article 133(1) when the Amendment Act came into when the Amendment act came into force; or (ii) where a certificate of fitness is already given under Article 133(1) before the Amendment Act but an appeal is filed after that Act comes into force. It is only in these two eventualities that the application of the Amendment Act is excluded, and it is provided that a pending appeal can be disposed of or an appeal can be filed on the strength of a certificate already issued as if the Amendment Act had not been passed. It must be stated that in the two matters with which we have to deal none of these facts exists.

8. Whether there is still a right of appeal can also be gathered from the effect of sub-s (2) of the Constitution (Thirtieth Amendment) Act. 1972. This sub-section provides:

'Subject to the provisions of sub-section(1). no appeal shall lie to the Supreme Court under clause(1) of Art, 133 of the Constitution from any judgment, decree or final order arising out of a suit or other civil proceeding which was instituted or commenced in any Court before the commencement of this Act unless such appeal satisfies the provisions' of that clause as amended by this Act'. The effect of sub-section (2) of Section 3. in our opinion is clear and explicit. It provides that after the commencement of the Constitution (Thirtieth Amendment ) Act 1972. no appeal shall lie to the Supreme Court under Article 133(1) of the Constitution unless such appeal satisfies the provision of clause(1) of Article 133 as amended by the Amendment Act. A reading of this sub-section clearly shows that the only appeal which is permissible to be filed hereafter is one which satisfies the provisions of Article 133(1) of the Constitution as it stands amended after 27-2-1973. There is no other appeal available under Article 133(1) as now amended does not provide for a right of appeal in a case where the claim involved in the appeal to the Supreme Court is over Rs. 20000/- The right of appeal is now available only if the High Court needs to be decided by the Supreme Court. That is the only test on the basis of which a right of appeal is now available under Article 133(1). and in view of the clear provisions of sub-sections (2) of Section 3 of the Amendment Act it is clear to us that hereafter no appeal is permissible on account of the fact that it involves merely a monetary claim worth more than Rs. 20,000/-

9. Mr. Kherdekar, however, argues that the right f appeal exists to the petitioner on account of the fact that the application for leave to appeal was filed even before the Amendment act came into force. He submits that the right of appeal is a substantive right and such a right cannot be affected on account of the subsequent legislation . Normally this would be the position. However even a right of appeal can be affected or taken away if there is an express provision in an amending statute. The provisions of Section 3(2) of the Constitution (Thirtieth Amendment ) Act 1972. clearly shows that there is an express intention to take away such a right. These, provisions clearly lay down that no other right of appeal is available except as provided by Section 2 of the Amendment act. By these provisions of the Legislature has clearly evidenced its intention to affect the right to appeal which would be available in a case where the claim involved in the appeal to the Supreme Court is over twenty thousand rupees. We must reject this submission.

10. The view which we have taken is supported by a decision of the Division Bench of the Delhi High Court which is reported in Smt. Abnash Kaur v. Lord Krishna Sugar Mills Ltd. (1973) 75 Pun LR (D) 2151. There also the Delhi High Court has held that sub-section (2) of Section of the Amendment Act creates an absolute bar to an appeal satisfies the provisions of clause (1) of Article 133 of the Constitution as amended by the Amendment Act. Since we hold that there is no right of appeal now available on account of the existence of the claim of more than twenty thousand rupees, these two applications will have to be rejected.

11. Mr. Kherdekar alternatively tried to submit that the case involves a substantial question of law and therefore, we should grant a certificate even under the amended Article 133(1). He submits that the case involved a substantial question of general importance which needs to be decided by the Supreme Court. It is not possible for us to accept this submission. The question whether the respondents Nos. 2 to 5 are the legitimate sons of Wamanrao is essentially a question of fact. It may be that while dealing with the question the Court was required to consider the provisions of Section 112 of the Evidence Act. Even there whether at the relevant time there was access or not is a question of fact. It is, therefore, not possible to accede to the request of Mr. Kherdekar on this alternative ground.

12. The result is that the rule in Misc. Civil Application No. 12 of 192 will be discharged. However, in the circumstances of the case there will be no order as to costs. in that case. So far as Misc. Civil Application NO. 13 of 1972 is concerned, It is rejected.

13. Application dismissed.


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