1. This is an application for leave to appeal to His Majesty in Council, purporting to be one under Section 109(a) read with Order 45, Rule 3, Civil P.C. The following pedigree will be helpful:
Sher Singh=Jasbali, D. 4 |
| Mt. Kundan Jan = Nawab Naqi = Mt.Alimal-
| D.1 (Subsequently Uddin ul-Nissa
| Rafiqa Begam) Ahmad Khan Begam
| | Died 17-11-24
| Dalip Singh |
| (subsequently |
| Nooruddin Ahmad) |
| D.2 |
| | |
| Aisha Begam (p)= Halimunissa
| Shaukat Ali Khan (Died 21-5-24)(Died in 1928)
| | | | |
Hari Singh Partap Singh Mt. Ganga Mt. Panna Mt. Hira
D.3 D.8 D.5 D.6 D.7
2. On 27th July 1938 Aisha Begam brought a suit in the Court of the Civil Judge of Moradabad, suit No. 36 of 1938, against (1) Kundan Jan, (2) Dalip Singh alias Nooruddin Ahmad, (3) Hari Singh, (4) Mt. Jasbali, (5) Mt. Ganga, (6) Mt. Panna, (7) Mt. Hira and (8) Partap Singh for possession of property, both moveable and immovable, and laid the claim at Rs. 15,676-2-6, on the allegation that the property belonged to her father, Nawab Naqiuddin Ahmad Khan and that she was after the death of her sister, Mt. Halimunnissa, her father's sole surviving daughter and heiress. Her case, as disclosed in the plaint, was that her mother, Mt. Kundan Jan, was a prostitute and married her father in the year 1899, after which she embraced Islam and assumed the name of Rafiqa Begam. After this marriage only two children were born of her, she herself and her deceased sister. Dalip Singh was born to her before her marriage with her father and assumed the name of Nooruddin only after this marriage.
3. She was, the plaint further proceeded, married to one Nawab Shaukat Ali Khan, who died on 21st May 1924 and after the death of her father on 17th November 1924, her mother's brother, Sher Singh, with his daughters and others, began to live with her and under their influence she went back to a life of shame. It was principally on these allegations that she based her claim for recovery of the property in dispute and also for the cancellation of a sale deed alleged to have been executed by her on 28th June 1931, under undue influence. The defence of Nooruddin Ahmad in the main, was that he was the result of the union of Nawab Naqiuddin Ahmad Khan and Mt. Eafiqa Begum and was never known as Dalip Singh. The learned Civil Judge, Mr. Ryazul Hasan, held that Nawab Naqiuddin Ahmad Khan was not the father of Nooruddin Ahmad, but that he was born when his mother was leading a life of infamy and decreed the suit. Against the above decree the defendant came in appeal, P.A. No. 33 of 1940 to the High Court and valued the appeal at a sum of Rs. 10,325. This appeal was substantially allowed on 29th January 1945. See : AIR1945All367 . This Court held that Nooruddin was the son of Nawab Naqiuddin. Leave to appeal to His Majesty in Council against this judgment has been granted.
4. It appears that on 24th July 1937, Mt. Aisha Begam had brought another suit for cancellation of a mortgage, dated 1st September 1932, for a sum of Rs. 3,000, executed by her in favour of her mother. She also claimed a declaration that she was the owner of the entire eighteen sihams which belonged to her sister and that, as Nooruddin was not the son of her father and as her mother had renounced Islam, she was the sole heiress of her sister. Her claim was resisted on the ground that Rafiqa Begam and Nooruddin were also entitled to a share in the inheritance of Mt. Halimunnissa and that the plaintiff's share was only five sihams. The learned Civil Judge, Mr. Bishambhar Prakash, held that Nooruddin Ahmad was not the son of Nawab Naqiuddin Khan, but he held that Mt. Rafiqa Begam was also entitled to a share as her reconversion to Hinduism had not been established. He held that the sale-deed (sic. mortgage) was wholly invalid in that it was without consideration and brought about under undue influence, but he dismissed the suit only on the ground of limitation. Aisha Begam went in appeal, Appeal No. 190 of 1938, before the District Judge of Moradabad and Nooruddin Ahmad challenged the finding of the learned Civil Judge against him by means of a cross-objection. The learned Additional District Judge by his judgment of 31st January 1940 disagreed with the learned Civil Judge on the question of the paternity of Nooruddin and held that he was the son of Nawab Naqiuddin Ahmad Khan. On the other questions, the validity of the mortgage and the bar of limitation, he agreed with the learned Civil Judge and, while dismissing the appeal, allowed the cross-objection. Mt. Aisha Begam came in second appeal to this Court : Second Appeal No. 507 of 1940. : AIR1945All367 . Both the first appeal and the second appeal were connected, although they were disposed of by different judgments. This Court disagreed with the Courts below on the question of the bar of limitation. The learned Judges held that the suit was not so barred but they accepted the finding of the learned Additional District Judge that Nooruddin Ahmad was the son of Nawab Naqi Ahmad Khan. Indeed they did not after their judgment in the connected first appeal go into this question in detail as they themselves say:
We have already held in the first appeal that Nooruddin Ahmad was the legitimate son of Naqiuddin. It is not necessary for us to reiterate the same reasons. We need only mention that we agree with the finding of the learned Additional District Judge of Moradabad that there was no definite evidence to prove that Nooruddin Ahmad was illegitimate and by reason of the acknowledgment of the paternity made by Naqiuddin and by reason, of the admission made by the plaintiff herself and the other relations there was good prima facie evidence that he was the legitimate son of Naqiuddin.
The learned Judges of this Court partly allowed the appeal and it is against this decision that the lady, Mt. Aisha Begam, wants to go in appeal to His Majesty in Council.
5. We do not know how the learned Judge entertained the cross-objection of Nooruddin. The suit had been dismissed, even though with a finding adverse to him. But a cross-objection is allowed only against a decree; that was entirely in his favour. The learned Judge, however, entertained it and we might leave it at that. Order 45, Rule 4, permits consolidation if the two suits are decided by the same judgment, but not by separate judgments even though 'they involve substantially the same questions for determination.' This point was brought out very clearly in Mukandi Lal v. Hashmat-un-nisa : AIR1936All832 . It disagreed with the view of the Patna High Court in Har Prasad Rai v. Brij Kishen ('18) 5 A.I.R. 1918 Pat. 196 that the High Court had an inherent power for consolidating appeals to the Privy Council. We are thus left to see whether the case comes within Sections 109 and 110, Civil P.C. The present is not a case under Clause (b) but under Clause (a) of Section 109. Both clauses are, however, subject to Section 110, Civil P.C., which requires that
the value of the subject matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject matter in dispute on appeal to His Majesty in Council must be the same sum or upwards.
6. Even if this condition is fulfilled, if the decree or final order of this Court is one of affirmance of that of the trial Court, 'the appeal must involve some substantial question of law.' It is obvious that this test is not answered by the present case. There are only two other provisions the aid of which might be invoked by the applicant. Either it involves, 'directly or indirectly, some claim or question to or respecting property of like amount or value' within the meaning of Section 110 or it falls within the four corners of Section 109(c). The case in Mukandi Lal v. Hashmat-un-nisa : AIR1936All832 is itself authority for the proposition that the aid of the latter provision can be invoked in suitable cases. There is also the earlier case in Atma Ram v. Beni Prasad : AIR1934All198 . In both the eases the judgment of the Court was delivered by Sir Shah Sulaiman.
7. Before addressing ourselves to the' question whether the facts of this case attract the application of Section 109(c), we think it advisable to see if the application comes under Section 110, Civil P.C., and the decree involves 'directly or indirectly some claim or question to or respecting property of like amount or value.' This Court, as well as the Calcutta High Court, placed a liberal interpretation upon this provision of the law, for 'instance Mahomed Asghar v. Mt. Abida Begum : AIR1933All177 and Lala Bhagwat Sahay v. Rai Pashupati Nath Bose ('06) 10 C.W.N. 564 although the view of some other Courts were not the same, for instance John Joseph DeSilva Sr. v. John Joseph DeSilva Jr. ('04) 6 Bom. L.R. 403. But very recently their Lordships of the Privy Council in Shevantibai v. Janardhan Raghunath have disagreed with the view of the Allahabad and the Calcutta High Courts and have accepted the view of the Bombay High Court. But the facts in Mahomed Asghar v. Mt. Abida Begum : AIR1933All177 and of the case before their Lordships differ materially from the facts in the present case. In the former case the suit was one for partition of house properties, which were of a much larger amount than rupees ten thousand, but the plaintiffs' share was worth less than ten thousand rupees. This Court had held that:
We think that inasmuch as the plaintiffs' claim was for the partition of the whole house and the claim could not be decreed without considering the value of the entire house and the method in which the partition should take place, it is very difficult to say that the decree does not at least indirectly involve a question respecting the whole house which is admittedly of the value of Rs. 10,000.
8. In the case before their Lordships the facts were these : The plaintiff was an assignee of the purchaser from a member of a joint Hindu family of one-sixth share in the joint family property and it was of this share that he claimed a partition. The value of that share was only Rs. 3000 although the value of the entire joint family property exceeded Rs. 10,000. There was no controversy as to the identity or extent of the family property. The Courts in India had agreed. Leave to appeal to His Majesty in Council was refused by the High Court on the ground that the case did not fulfil the requirements of Section 110 in that it did not involve 'directly or indirectly some claim or question to or respecting property of like amount or value,' nor did it fulfil the requirements of Section 109(c). The plaintiff prayed for special leave and obtained it, but liberty was reserved to the respondents to contend that such leave ought not to have been granted. The respondents did take exception and their Lordships dismissed the appeal on the ground that:
Their Lordships are satisfied that the appellate Court were correct in holding 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 is claiming, and indeed this view was not disputed before their Lordships' Board.
But their Lordships made it abundantly clear that there may exist circumstances in ' which a 'claim or question to or respecting property of like amount or value' may be indirectly involved as they themselves say:
Their Lordships do not find it necessary to decide whether the words of the second clause in Section 110 can on their true construction ever refer to any property but that outside the suit.
Those were cases of partition and the claim was confined to the plaintiff's own share which was below Rs. 10,000. The present is a case where the fate of the second appeal will materially affect the fate of the appeal in which leave has already been granted. If the finding that Nooruddin was the legitimate son of his father, Naquiuddin, stands, it may operate as res judicata in the other appeal. It is, therefore, obvious that the facts of this case differ widely from the cases in Mahomed Asghar v. Mt. Abida Begum : AIR1933All177 and Lala Bhagwat Sahay v. Rai Pashupati Nath Bose ('06) 10 C.W.N. 564 or in Shevantibai v. Janardhan Raghunath . The question, therefore, is : Is it a suitable case? Before dealing with the authorities, it is necessary to bear in mind the distinction between the phraseology of the first part of Section 110 and that of the second part. The first part speaks of 'the subject-matter of the suit in dispute'; the second part speaks of 'property of like amount or value.' Sections 595, 596 and 600 of the Code of 1882 which correspond to Sections 109, 110 and Order 45, Rule 3 of the present Code were considered by their Lordships in Banarsi Prasad v. Kashi Krishen Narain ('01) 23 All. 227. The High Court had certified the case under Section 595 : 109 and Section 600 : Order 45, Rule 3, - and not under Section 596 : 110. Their Lordships held that the case, by reason of its valuation, which was Rs. 4000 only did not answer the test and Lord Hobhouse delivering the judgment observed as follows:
It is true that by Sections 595 and 600 an appeal may be granted if the High Court certifies that the case is fit for appeal 'otherwise', i.e. when not meeting the conditions of Section 596. That is clearly intended to meet special cases; such, for example, as these in which the point in dispute is not measurable by money, though it may be of great public or private importance.
9. It is clear from the above that the 'special cases' in order to fall within the orbit of 'otherwise', need not be only those of 'public' importance but can also be cases of private importance. The matter came for consideration in a later Privy Council case Radha Krishna v. Swaminath ('21) 8 A.I.R. 1921 P.C. 25. Lord Buckmaster made it dear that even though the subject-matter of the suit may be less than Rs. 10,000 or may not fulfil the other requirements of Sections 109 and 110, it may still' be fit for certificate as belonging to a class of
cases in which it is impossible to define in money value the exact character of the dispute; there are questions, as for example, those relating to religious rights and ceremonies, to caste and family rights, or such matters as the reduction of the capital of Companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money. Sub-section (c) of Section 109, Civil P.C., contemplates that such a state of things exists; and Rule 3 of Order 45 regulates the procedure.
That the above definition is not exhaustive but only illustrative was held in Siva Prosad Singh v. Rani Prayag Kumari Debi ('22) 9 A.I.R. 1922 Cal. 479 at pages 979 and 980. It is, however, contended on behalf of the opposite party that the case is neither of sufficient public nor of private importance to bring it within the dictum laid down by Lord Hobhouse in Banarsi Prasad v. Kashi Krishen Narain ('01) 23 All. 227 or of Lord Buckmaster in Radha Krishna v. Swaminath ('21) 8 A.I.R. 1921 P.C. 25. We do not agree. It is a matter of great importance to the applicant, because the decision of this Court in the second appeal not only decides the fate of that appeal, but seriously affects the appeal about to go before their Lordships of the Privy Council. We think that this is a case which clearly falls within Clause 2 of Section 110, Civil P.C., and that it does not fall within the mischief of the decision in Shevantibai v. Janardhan Raghunath . The view which we propose to take receives countenance from the case in Sri Kishen Lal v. Kashmiro ('13) 35 All. 445. The facts briefly were these: There was a dispute between the heirs of one Harnam Prasad as to the division of the family property worth about Rs. 1,60,000. It was referred to arbitration and an award was made. Mt. Kashmiro, the widow of the deceased, was given an eight anna share in some mortgagee rights, while Sri Kishen Lal, the plaintiff, was given four annas. The lady alone brought a suit upon the mortgage and recovered the money from the mortgagors. The plaintiff, thereupon, brought a suit for recovery of his four anna share in the mortgage money. The suit was valued at more than Rs. 10,000. The Court below gave the plaintiff a decree for Rs. 8800. In appeal the High Court held that the award was fraudulent and collusive and dismissed the suit. The plaintiff applied for leave to appeal to His Majesty in Council, on the ground that the decree would affect property valued at Rs. 40,000 in his possession under the award. Banerji J. delivering the judgment of the Court observed:
It is admitted that the award relates to property far exceeding Rs. 10,000 in value. This Court held, reversing the decision of the Court below, that the award was not binding on the lady for reasons stated in this Court's judgment. It is the correctness of this decision which is challenged in the proposed appeal. If the decree of this Court becomes final, the question of the validity of the award will also become final as regards property other than the property in dispute in the present suit. It is, therefore, clear that the decree of this Court does involve a question relating to property of value exceeding Rs. 10,000.
There are certain authorities Hanuman Prasad v. Bhagwati Prasad ('02) 24 All. 236 which are difficult to reconcile with this case, but they may be distinguished on the ground that the connected suits likely to be affected were not suits in existence, but were suits in gremio futuri, although there are certain observations in Sri Kishen Lal v. Kashmiro ('13) 35 All. 445 which seem to strike a note of dissent from the above.
It is contended on behalf of the opposite party that unless there is at the time of the presentation of the application for leave to appeal a dispute pending in some Court respecting other property of the value of Rs. 10,000, leave cannot be granted under Section 110. We are unable to agree with this contention. The first paragraph of the section provides for cases in which the value of the subject-matter of the suit and of the subject-matter in dispute on appeal to His Majesty amounts to Rs. 10,000 or upwards. The second paragraph was intended to provide for cases in which although the value of the subject-matter of the suit or subject-matter in dispute on appeal to His Majesty was below Rs. 10,000, the decree or final order involved, directly or indirectly, a claim or question to or respecting property of the value of Rs. 10,000, or upwards. The paragraph to which we have referred is very wide and general, and it seems to us that it was clearly inserted in the section to meet a case like the present. The principle which underlies a question of this kind was discussed by their Lordships of the Privy Council in Macfarlane v. Leclaire (1862) 15 Moore P.C. 181 and it seems to us that in view of the opinion of their Lordships in that case, para. 2 of Section 596 of the Code of 1882, which corresponds to Section 110 of the present Code, was enacted. A similar view to that held by us, appears to have been taken by the Calcutta High Court in Mt. Aliman v. Mt. Hasiba ('97) 1 C.W.N. 93n and Anand Chandra Bose v. Broughton ('72) 9 Beng. L.R. 423. As in the present case, the decree involves a question respecting property of value exceeding Rs. 10,000, and as the decision of the Court below was reversed by this Court, the case in our opinion fulfils the requirements of Section 110, Civil P.C., and we so certify.
10. The present, however, is not a case in which the connected suit is in gremio futuri, it is in its developed form actually in existence in which leave to appeal to His Majesty in Council has already been granted. It is not necessary to notice the class of cases of which Surapati Roy v. Ram Narain Mukherjee ('23) 10 A.I.R. 1923 P.C. 88 and Kumar Raj Krishna Prasad v. Bara Boni Coal Concern Ltd. ('35) 62 Cal. 992 are a type and in which, the liability being of a recurring nature, the value of the subject-matter of the suit generally exceeds Rs. 10,000. In a recent case from Sind Firm L.V. Govindji and Co. v. Premji Damodar Thacker ('44) 31 A.I.R. 1944 Sind 190 the point has been brought out very clearly. The facts were these : One Premji Damodar was at one time manager and later a, partner with the firm of L.V. Govindji & Co. The partnership was dissolved and an agreement was executed by Premji Damodar in favour of the applicant-firm, L.V. Govindji & Co., one of the terms of which, was that Premji would not engage in a certain form of insurance business which together with other forms of insurance business was carried on by the firm of the applicants Firm L.V. Govindji & Co. The applicants alleging a breach of the agreement filed a suit - Suit No. 212 of 1937 - in the Court of the Judicial Commissioner of Sind against Premji Damodar. They prayed for a mandatory injunction and also claimed RS. 6000 by way of damages for breach of the agreement by Premji Damodar for a period of about two years ending with the institution of the suit. On 18th December 1939, the suit was decreed. A mandatory injunction was issued by the Court restraining Premji, whether in his own name or in any other name, from carrying on business in craft insurance except through the plaintiffs in conformity with the terms of the agreement. The learned Judge also allowed the firm a decree for Rs. 6000 as damages with interest from the date of the suit. Against this decision of the trial Court, Premji preferred an appeal, which was allowed.
11. During the pendency of this appeal, the firm filed a suit - Suit No. 93 of 1940 - against Premji for recovery of Rs. 10,000 as damages for breach of the agreement. This suit came up for hearing after the appellate Court had reversed the decree of the trial Court in the connected Suit No. 212 of 1937 and was dismissed on the ground of res judicata. The firm preferred an appeal, which was summarily dismissed. An application for leave to appeal to His Majesty in Council in the first suit was granted. In the later suit, where the judgments of the Courts in India were concurrent, leave was prayed. The learned Judge accepted the prayer in these terms:
We think further that the applicants are entitled to a certificate in this case also under Section 109(c). The case is a fit one for appeal to His Majesty in Council both because of its connection with the other case in regard to which leave is being granted and because if leave were not granted in this case it might imperil the position of the applicants before their Lordships of the Privy Council in the 'ase in which leave is being granted.
12. We have no hesitation in subscribing to the above view. If we do not grant leave in this case, the position of the applicant in the other case before their Lordships of the Privy Council will be imperilled. We are, therefore, of opinion that this case fulfils the requirements both of Clause (2) of Section 110 and also of Clause (c) of Section 109, Civil P.C., and we certify accordingly.