Skip to content


Mrs. Hem Niloni Judah Vs. Mrs. Isolyne Saroj Basini Bose and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Appeal No. 14 of 1957
Judge
Reported inAIR1959All249
ActsCode of Civil Procedure (CPC) , 1908 - Sections 110; Constitution of India - Articles 133 and 135
AppellantMrs. Hem Niloni Judah
RespondentMrs. Isolyne Saroj Basini Bose and anr.
Advocates:S.P. Avasthi, Adv.
Excerpt:
.....in the court of first instance should not be less than rs. 10,000/- is fully satisfied in the present case. 10,000/- on 17-1-1957. all that was contended by the learned counsel for the plaintiff opposite party was that he was not satisfied with this order of the court an the subsequent suit holding the value of the plaintiff opposite party's share to be of the value of rs. in these circumstances, we are satisfied that there has been a sufficient inquiry in which the plaintiff opposite party has had a full opportunity to show what was the correct value of this property and consequently a further inquiry will serve no purpose and will not give any additional right to the plaintiff opposite party which she can claim......with this order of the court an the subsequent suit holding the value of the plaintiff opposite party's share to be of the value of rs. 15,000/-.the satisfaction of the plaintiff opposite party is immaterial. the order fixing the valuation for that suit is based on inquiries made through a commissioner and when the report of the commissioner was filed, parties were given an opportunity to file objections which were decided after hearing the parties.in these circumstances, we are satisfied that there has been a sufficient inquiry in which the plaintiff opposite party has had a full opportunity to show what was the correct value of this property and consequently a further inquiry will serve no purpose and will not give any additional right to the plaintiff opposite party which she can.....
Judgment:

V. Bhargava, J.

1. This is an application for the grant of a certificate under Article 133 of the Constitution praying that a certificate be issued in respect of a judgment of this Court dated 17-1-1957. After the presentation of this application, the applicant presented another application praying that his request may be considered not merely under Article 133 of the Constitution but also under Article 135 of the Constitution.

It appears that the original suit, out of which the appeal came up before this Court, was instituted in the year 1946. The suit was valued at Rs. 15,000/-. The subject-matter of the property in dispute was therefore clearly Rs. 15,000/-. The plaintiff opposite party had claimed the ownership of the whole of a house which she had valued at this amount of Rs. 15,000/-.

The decree which was passed by this Court on 17-1-1957, declared the plaintiff opposite party to be owner of only a half share in the house, and it is against this part of the decree that the present applicant wants to go up in appeal to the Supreme Court. The value of this half share of the property at the time of the institution of the suit, was only Rs. 7,500/-, but it has been contended by the learned Counsel for the applicant that on the 17-1-1957, when this Court passed the decree against which the appeal is sought to be filed before the Supreme Court, the value of this half share of the plaintiff exceeded Rs. 10,000/-.

It is, therefore, contended on behalf of the applicant that the applicant is entitled to obtain a certificate as of right. On behalf of the opposite party it has, however, been contended that there is no such right as the value of the share decreed in favour of the plaintiff opposite party is only Rs. 7,500/-.

2. We may first take notice of the fact that this suit having been instituted in 1946, before the Constitution came into force, the right of appeal to the Privy Council was governed by Section 110 of the Code of Civil Procedure under which, if the decree of the High Court was a decree reversing the decision of the Court of first instance the party concerned had a right of appeal to the Privy Council if the subject matter in dispute in the Court of first instance be, and the subject matter in dispute before the Privy Council be, not less than Rs. 10,000/-. That jurisdiction of the Privy Council now rests in the Supreme Court.

The right of appeal accrues on the date of the institution and consequently for the purpose of deciding whether a certificate can or cannot be claimed in this case, the relevant value to be taken into account is Rs. 10,000/-, and not Rupees 20,000/- as now laid down in Article 133 of the Constitution.

3. Very clearly, the first requirement that the value of the subject matter of the property in dispute in the Court of first instance should not be less than Rs. 10,000/- is fully satisfied in the present case. The property was valued by the plaintiff opposite party herself at Rs. 15,000/- and the whole of the property was in dispute in that Court.

4. In the appeal now sought to be filed, the whole of that property is no longer in dispute and cannot be in dispute, because the decree declares the right of the plaintiff opposite party to the extent of a half share only, the remaining half share having been held to belong to the applicant who wants to go in appeal.

It is immaterial on what ground the applicant has been held to be entitled to that half share, because it is obvious that, by tile further appeal to the Supreme Court, the only relief that the applicant can now obtain will relate to the half share in the house decreed in favour of the plaintiff opposite party.

That half share was no doubt valued at Rupees 7,500/- on the date of institution of the suit but, for the purpose of determining what will be the value of the subject matter in appeal before the Supreme Court, we have to take the value of tnat property on the date of the decree by this Court i. e. 17-1-1957. This principle was laid down for the first time by their Lordships of the Privy Council in Gooroopersad Khoond v. Juggutchun-der, 8 Moo Ind App 166 (PC).

That principle was followed by this Court in Sahu Ram Kumar v. Muhmmad Yakub, ILR. 42 All 445: (AIR 1920 All 202). The same principle in respect of the second clause of Section 110 of the Code of Civil Procedure was laid down by the Lahore High Court in Nasar Ahmad v. Mt. Said-unnissa, AIR 1932 Lah 526, in which case it was also mentioned that the same principle had been laid down by the Calcutta and Bombay High Courts in Surendra Nath v. Dwarka. Math, 1LR 44 Cal 119: (AIR 1917 Gal 496) and Raoji Bhikaji v. Laxmibai, AIR 1920 Bom 418. There is thus clear consensus of opinion that, for the purpose of determining the right to a certificate as sought in the present case, the value of the subject-matter in appeal has to be determined with reference to the market value of the property on the date of the decree of the High Court. In the present case, therefore, we have to determine what was the value of the half share of the house, which had been decreed in favour of the plaintiff, on 17-1-1957.

5. For this purpose, learned Counsel for the applicant has filed before us a certified copy of an order of the second Civil and Sessions Judge dated 2-9-1957, in which it was held that the value of this half share on the date of the institution of the suit in which that value was determined by that Court was Rs. 15,000/-.

The suit, which was before that Court, was a suit brought by the present plaintiff opposite party for partition of her share, in respect of which she had obtained the declaration from this Court by the judgment dated 17-1-1957. The suit was brought on 12-3-1957. It would appear, therefore that the Court in that subsequent suit has given a finding that the value of 1/2 share of the plaintiff opposite party which was decreed in her favour by the judgment of this Court dated 17-1-1957 was Rs. 15,000/- on 12-3-1957.

Learned Counsel for the opposite party has contended that that order of the lower court does not operate as res judicata and we should send the case for a fresh inquiry in order to determine the value of the property decreed in favour of the plaintiff opposite party as it was on 17-1-1957. We do not think that this is at all necessary.

In the partition suit filed by the plaintiff opposite party, it was a very material question as to what was the value of the share which was being claimed by her. The issue directly arose and has been decided by the court below. The Court dealing with that suit recorded a finding that the value of the property on 12-3-1957, was Rupees 15,000/-.

It has not been contended before us that, between 17-1-1957 and 12-3-1957, the value of the property had increased to such an extent as to lead to the possibility that property which was found to be worth Rs. 15,000/- on 12-3-1957 would have been worth less than Rs. 10,000/- on 17-1-1957. All that was contended by the learned counsel for the plaintiff opposite party was that he was not satisfied with this order of the Court an the subsequent suit holding the value of the plaintiff opposite party's share to be of the value of Rs. 15,000/-.

The satisfaction of the plaintiff opposite party is immaterial. The order fixing the valuation for that suit is based on inquiries made through a commissioner and when the report of the commissioner was filed, parties were given an opportunity to file objections which were decided after hearing the parties.

In these circumstances, we are satisfied that there has been a sufficient inquiry in which the plaintiff opposite party has had a full opportunity to show what was the correct value of this property and consequently a further inquiry will serve no purpose and will not give any additional right to the plaintiff opposite party which she can claim.

In the circumstances, we accept the valuation arrived at by the Court in the partition suit as substantially correct and on its basis hold that the property, which is to be in dispute before the Supreme Court, viz., half share decreed in favour of the plaintiff opposite party, had a value of more than Rs. 10,000/- on 17-1-1957.

6. We, therefore, allow the application withcosts and grant the certificate to the applicant asprayed under Article 133 of the Constitution readwith Article 135 of the Constitution and Section 110 ofthe Code of Civil Procedure.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //