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Smt. Dayali Devi Vs. CaptaIn J.M. Mitra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 360 of 1963
Judge
Reported inAIR1973All249
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantSmt. Dayali Devi
RespondentCaptaIn J.M. Mitra and anr.
Appellant AdvocateK.C. Saxena, ;Radhakrishna, ;Kumar Chand and ;S.C. Dey, Advs.
Respondent AdvocateParvin Chaturvedi, ;R.C. Ghatak, ;N.D. Pant and ;Virendra Singh, Advs.
DispositionAppeal dismissed
Excerpt:
civil - appellate court - order 41, rule 33 of code of civil procedure, 1908 - relevant part of order 41, rule 33 confers power on appellate court to set aside decree of lower court - the more unanimous and reasonable interpretation that the power given to the court of appeal can be exercised only if the appeal on its own merit must succeed. - - her application was dismissed on 25-10-1952. it may here be mentioned that dayali devi had then, unsuccessfully set up a rival will which purported to have been executed by her husband shamsher singh on 4-1-1946 making an absolute bequest to her solely. the court below, however, repelled the defence plea and decreed the suit against her as well. therefore, if this court feels satisfied that the trial court in doing so committed an error, it.....kirty, j.1. suit no. 31 of 1958, giving rise to this appeal, was instituted on february 1, 1957 by dr. j. n. mitra, in his capacity as the executor of the will of sham-sher singh dated 14th july, 1944, against smt. dayali devi, widow of the said testator. shamsher singh died issueless on january 20, 1946. under the will, smt. dayali devi was given a right of residence and a life interest in the income from the estate, the management of which was vested in and entrusted to dr. mitra, the executor, and after her death the entire estate was to be given to the trustees of the ram krishna mission, kankhal, hardwar in trust for founding and maintaining a hospital. the relief sought in the suit was for possession of the properties mentioned in the schedule appended to the plaint, subject to the.....
Judgment:

Kirty, J.

1. Suit No. 31 of 1958, giving rise to this appeal, was instituted on February 1, 1957 by Dr. J. N. Mitra, in his capacity as the executor of the will of Sham-sher Singh dated 14th July, 1944, against Smt. Dayali Devi, widow of the said testator. Shamsher Singh died issueless on January 20, 1946. Under the will, Smt. Dayali Devi was given a right of residence and a life interest in the income from the estate, the management of which was vested in and entrusted to Dr. Mitra, the executor, and after her death the entire estate was to be given to the trustees of the Ram Krishna Mission, Kankhal, Hardwar in trust for founding and maintaining a hospital. The relief sought in the suit was for possession of the properties mentioned in the Schedule appended to the plaint, subject to the rights and interests of Dayali Devi therein. Shamsher Singh's sister, Smt. Dewa Devi was impleaded as defendant No. 2 at her own instance and in pursuance of an application made by her. The suit after contest by both the defendants was decreed in toto by the trial court by judgment and decree dated March 27, 1963. The instant appeal was filed by Dayali Devi alone against the plaintiff, in which Deva Devi was arrayed as defendant-respondent No. 2.

2. Deva Devi filed an application for permission to file an appeal in forma pauperis. This application was dismissed on '18-9-1963 and the memorandum of appeal was returned to her under Section 4 of the Court Fees Act by an order dated 17-4-1964. Subsequently she filed a cross-objection which too was dismissed on 24-4-1964 on the grounds that it was barred by limitation and that it was also not legally maintainable. She had also applied for review of the judgment of the trial Court, but her application was dismissed on 18-10-1965. All these orders became final and Deva Devi was left with no legal right to challenge or question the decree passed by the trial court against her individually. It may be mentioned here that in her written statement, she (vide paragraphs 31, 37 and 38 of the additional pleas) had specifically pleaded that under the will of her father Dr. Chandan Singh she became entitled to all the properties in suit to the exclusion of all other persons on the death of her brother Shamsher Singh and that she was in possession of the same in her own independent right and was entitled to so remain in possession. These pleas were repelled by the court below and the suit was decreed for possession against both the defendants.

3. Deva Devi died on 29-11-1966. An application thereafter was filed by Dayali Devi alleging that she was the only heir and legal representative of Deva Devi and praying that the name of the deceased be struck off and a note be made that the appellant herself was the legal representative. This application was disposed of by an order dated 20-12-1967. From a perusal of this order it would appear that before the learned Judge it was stated by Sri K. C. Saksena, learned counsel for Dayali Devi, that the appellant was legatee of Deva Devi under an unregistered will. The assertion was denied by the learned counsel for the plaintiff-respondent. Both the counsel, however, agreed that Deva Devi's name be struck off. The learned Judge ordered her name to be struck off and observed that the question whether Dayali Devi was the legatee of Deva Devi would be determined by the Bench hearing the appeal if necessary.

4. Dayali Devi died on 10-11-1968. Thereupon the application under Order XX, Rule 3, C.P.C. was filed praying that her name be struck off and in her place the names of Sri S. N. Mathur and four other persons, alleged to be legatees under her will dated 8-11-1968, be substituted as her legal representatives. A true copy of the alleged will was annexed to the affidavit filed in support of the application. The application was contested and the alleged will was denied. This application was disposed of by an order dated 4-8-72 and the names of four persons were ordered to be substituted in place of Dayali Devi, only on the footing that even as intermeddlers they would be legal representatives under Section 2(11) of the Code of Civil Procedure. One person was ordered to be arrayed as pro-forma respondent because he objected to his being substituted as a co-appellant. It may be mentioned that in the copy of the alleged will no mention at all was made how and in what capacity Dayali Devi came to own and possess the properties in suit nor was there any mention of any will of Deva Devi in her favour. A mention, however, was made that she had no near relation or heir.

5. In the schedule to the plaint five items of immovable properties were specified. Issues Nos. 1 and 2 framed in the suit were:--

1. Whether the property in suit or any portion of it belonged to Chandan Singh?

2. Whether the property in suit or any portion was self-acquired property of Sham-sher Singh?

Chandan Singh was admittedly the father of Shamsher Singh and Deva Devi. He had another son named Teg Singh who died issueless in 1908. Chandan Singh died on 1-4-1897 leaving a will dated 26-3-1897. There is no longer any dispute about the existence and genuineness of this will. There, however, is a serious controversy regarding the construction and legal effect of this will, which will be dealt with separately. Here it may however, be mentioned and noted that the finding of the trial court on the above issues was not challenged before us by the learned counsel for the appellants. The finding is as follows:--

'I, therefore, hold that the land on which Kothi No. 7 Kutchery Road, Dehra-dun stands and properties detailed at Nos. 2 to 4 in the Schedule appended to the plaint i.e. shop and two Havelies belonged to Dr. Chandan Singh deceased and were the ancestral properties in the hands of Shamsher Singh deceased and Kothi known as Vish-ranti detailed at No. 5 in the schedule and the constructions now known as 7, Kutchery road, are self-acquired properties of Sham-sher Singh deceased.'

We may here further mention and note that the court below upon a construction of the will of Chandan Singh held that after the death of Tegh Singh, Shamsher Singh became full owner of half share in the property left by Dr. Chandan Singh, and that this finding was also not challenged by the learned counsel.

6. From what has been just stated above, it inevitably follows that the live controversy in the appeal and the subject-matter thereof must be confined to one half of the property left by Dr. Chandan Singh. That this is the position was also admitted by the appellants' learned counsel Sri K. C. Saksena. He agreed that if the appeal succeeds the decree of the trial court will have to be modified so as to dismiss the suit in respect of half share in the properties left by Dr. Chandan Singh as determined by the court below, the rest of the decree will remain unaffected.

7. Two other facts of great importance may now be noted. An application was filed in this court by Captain J. N. Mitra for grant of probate of the will of Shamsher Singh dated July 14, 1944. This application having been contested by Dayali Devi was registered as suit No. 3 of 1947 and ultimately decided in favour of Captain Mitra by judgment dated February 15, 1949. Probate was, thereafter, granted to him on 18-3-1949. Dayali Devi filed a Letters Patent appeal against the judgment. This appeal was dismissed on 14-3-1952. Dayali Devi applied for leave to appeal to the Supreme Court. Her application was dismissed on 25-10-1952. It may here be mentioned that Dayali Devi had then, unsuccessfully set up a rival will which purported to have been executed by her husband Shamsher Singh on 4-1-1946 making an absolute bequest to her solely.

8. Thereafter Dayali Devi filed a regular suit (No. 54 of 1952) against Captain Mitra and Deva Devi both, inter alia for a declaration that under the will of Dr. Chandan Singh dated 26-3-1897 she became the sole and absolute owner of the suit properties on the death of Shamsher Singh. The suit was contested only by Captain Mitra, defendant No. 1. The most important issue in the suit was whether Dayali Devi acquired any interest under the will in question. The trial Court recorded a categorical finding thereon that she acquired no interest under the will and held that on that finding alone the suit must totally stand dismissed. Findings however, were also given to the effect that under the will Shamsher Singh never became the absolute owner of the whole estate of Chandan Singh but got a life interest in a moiety thereof, although on the death of Teg Singh in 1908 he became the absolute owner of the other moiety, and that he had no legal right to make a will in respect of the one moiety in which he had a life interest only. The suit, however, was dismissed in toto. Dayali Devi filed an appeal (F. A. No. 605 of 1958) in this Court. This appeal was dismissed by judgment and decree dated 21st November, 1961. This court held that Dayali Devi acquired no interest in the will of Dr. Chandan Singh and that, consequently, she was not entitled to challenge the will executed by Sbamsher Singh. The appeal was dismissed and trial Court's decree dismissing the suit was affirmed. Admittedly, the judgment and decree of this court dated 21-11-1961 in first appeal No. 605 of 1958 became final even prior to the commencement of the actual hearing of suit No. 31 of 1958. Indeed, from the order-sheet (English note) of this suit it transpires that Deva Devi filed an application for im-pleadment as a party to the suit in February 1962. This application was contested by the plaintiff. It was, however, allowed by an order dated 17-3-1962. The trial Court observed that Deva Devi claimed a direct interest in the subject-matter of the suit and, therefore, she was entitled, to be impleaded as a party. It further observed that on being impleaded she would have a right to set up a defence, and tbat if in consequence of her defence being established the suit be liable to be dismissed, it would be dismissed. Thereafter Deva Devi filed her written statement on 21st June, 1962 pleading, inter alia, as already noted, that on Shamsher Singh's death she became the sole and absolute owner of the suit properties under the will of Chandan Singh dated 26-3-1897 to the exclusion of every body and that she was in possession in her own independent right. She further challenged Shamsher's will dated 14th July, 1944 not only on the ground of testamentary incompetence but also questioned its genuineness and execution. Three issues (Nos. 4-A, 4-B and 5) concerning Shamsher Singh's will were not pressed either by Dayali Devi or by Deva Devi. Therefore, the only defence that survived was that on Shamsher Singh's death she became absolute owner of the properties in question under the will of Chandan Singh. This matter was considered by the trial Court under issue No. 3, viz., 'Whether Chandan Singh executed a will on 26th March, 1897 as alleged in the written statement? If so, its effect.' Execution of this will was proved. In fact, it was not seriously questioned. Upon a consideration of the will the trial Court recorded categorical findings that Dayali Devi did not acquire any right or interest in Chandan Singh's property under the will and that the testator did not create nor had any intention to create any interest in his property in favour of any of his two daughters. Deva Devi, therefore, acquired no right or interest in the suit properties and, on Teg Singh's death, the surviving son ShamsherSingh acquired full ownership rights in the assets left by Chandan Singh.

9. Apart from the question of the correctness of the construction of Chandan Singh's will by the court below, and independently of it, two questions of vital importance arise (1) as to the legal effect of the earlier judgment of this court (in F. A. No. 508 of 1958) dated 21st November, 1961 (supra); and (2) the finality of the judgment and decree under appeal, at least in so far as Deva Devi was concerned. We propose to examine the second question first.

10. From all that has been already stated it is abundantly clear that Deva Devi had set up a complete defence in her own right and that she claimed full ownership to the exclusion of everybody else, including Dayali Devi. If she had succeeded in establishing her defence, the plaintiff's suit in respect of Chandan Singh's estate was bound to be dismissed. The court below, however, repelled the defence plea and decreed the suit against her as well. The decree was binding on her, and finality attached to the decree as against her once her memorandum of appeal was returned to her under Section 4 of the Court Fees Act as a consequence of the dismissal of her application for permission to file an appeal in forma pauperis. With the dismissal of her cross-objection, she had no legal right or means left to challenge the decree or to question the correctness of the findings recorded by the trial Court in plaintiff's favour and against her. This being the position, no person claiming title to the suit property under or through her, whether as her legal heir or as a legatee under her will, could possess or claim any right which she herself did not possess. If she had ceased to have any right to challenge the decree, surely her successor or legal representative could not be vested with such a right. This question has arisen because on the death of Deva Devi, the appellant Dayali Devi filed an application praying that Deva Devi's name be struck off from the memorandum of appeal and a note be made that the appellant is her legal representative. It has already been mentioned that when this application was heard, it was claimed on behalf of Dayali Devi that she was the sole beneficiary under a will left by Deva Devi. This will was never produced. But non-production of the alleged will is neither relevant nor of any consequence. Assuming that such a will was executed, Dayali Devi in her capacity as the legatee thereunder could not acquire any right to question the decree for the correctness of the findings against Deva Devi which had already become final. Dayali Devi had filed the instant appeal in her own individual capacity, and her legal representatives in their turn could be entitled to prosecute and press the appeal only in the same capacity in which she herself could have done, had she been alive.

11. Realizing that the difficulty was of an insurmountable nature, Shri Saksena sought to press into service the provisions of Order 41, Rule 33 of the Code of Civil Procedure. He contended that the trial Court upon an erroneous and untenable construction of the will of Chandan Singh and upon a wrong legal view of the legal effect held that under that will Deva Devi acquired the interest in Chandan Singh's assets on the death of Shamsher Singh and decreed the suit against her. Therefore, if this court feels satisfied that the trial Court in doing so committed an error, it should allow the appeal and set aside the decree under appeal as a whole and pass a decree dismissing the suit against both the defendants because such a decree ought to have been passed by the trial Court. In our, opinion, if Dayali Devi's appeal cannot suc-ceed on its own merit or it otherwise, fails, recourse cannot be had to Order 41, Rule 33 of the Code of Civil Procedure to resuscitate or sustain it; nor would it be fit and proper to do so, even if the court might have the requisite power in that behalf.

12. The relevant part of Order 41, Rule 33 reads:

'The appellate court shall have power to pass any decree and make any order Which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.'

Evidently, as the wording of Order 41, Rule. 33 itself manifestly shows, it is an enabling provision. It confers certain powers on the appellate Court but does not specify or lay down when and under what circumstances those powers are to be exercised. Howsoever wide the powers exercisable under this provision may be, it is difficult to accept any construction of this rule or any proposition that even though the appellate court finds that the appeal on its own merits cannot succeed, it would still have power to set aside the decree of the court below. The more reasonable and unanomalous interpretation of the rule will be that the powers given to the court of appeal under the rule can be exercised only if the court finds that the appeal on its own merits must succeed. It is only then that an appropriate occasion may arise for the exercise of the extraordinary powers conferred on the appellate court by this rule. The court may then consider and decide, having regard to all the material circumstances, whether and, if so, in what manner the powers should be exercised for doing complete justice between the parties according to law. Such interpretation will also be quite in consonance with the language and wording of the provision. If in a case the appellant fails to substantiate the grounds upon which he seeks or could seek relief from the appellate court, can he ask the court to consider and decide points which could have only arisen had another party filed an appeal either separately, or even jointly with him? If a suit is contested by several defendants on pleas, some of which only are common to all of them, each defendant would be entitled to press in his individual capacity and right the common pleas in the same manner and to the same extent as he would be entitled to press his separate pleas. Any such defendant would be entitled to file an appeal in his individual right against any appealable decree or order adverse to him, whether severally or jointly and severally with other defendants. In cases of suits instituted by several plaintiffs, the same legal incidence and rights would attach under comparable circumstances. That such is the legal posi-tion is also clear from Rules 1, 3, 4, 5, 6 and 7 of Order 1 and Rule 4 of Order 41 of the Code of Civil Procedure. But at the same time, it must be noted that neither on principle nor on the basis of any statutory provision--there being none to our knowledge, can it be held that an appellant on failing to support his appeal on grounds available to him individually as also jointly with other parties, whether arrayed as co-appellants or respondents, will be entitled to canvass in support of his appeal a point which could only have been raised by another party exclusively and individually, even though that party has submitted to the decree and the adverse finding on the point on which the decree is based. To concede such a right to an appellant would also result in manifest injustice to the decree-holder because he will be deprived of the benefit of the finality of the finding of the lower court on a point or issue arising as between him and that party alone. Nor under such circumstances, would it be open to the appellate Court to take recourse to the provisions of Order 41, Rule 33 for modifying or setting aside the decree appealed from.

13. The learned counsel for the parties cited a number of rulings on the question of applicability of Order 41, Rule 33 of the Code of Civil Procedure. They may now be considered. In Panna Lal v. State of Bombay : [1964]1SCR980 the plaintiff had filed three suits for recovery of certain sums against a number of defendants. The State of Madhya Pradesh was a defendant in each suit. The trial Court decreed the suits against State of Madhya Pradesh only but dismissed them as against the other defendants. Three appeals were filed by the State of Madhya Pradesh in which the plaintiff and the other defendants were arrayed as respondents. The Nagpur High Court held that the contracts in question had not been entered into by or on behalf of the State and, therefore, no decree could be passed against it. In the circumstances, it was urged on behalf of the plaintiff-respondent that the High Court, in any case, ought to grant relief against such of the other defendants as it thought fit under the provisions of Order 41, Rule 33 of the Code. The High Courts held that though this could be done under the said provision, there was no reason why the power should be exercised when the plaintiff-respondent could but did not prefer a cross-objection against the dismissal of his suits against the other defendants. The result was that the appeals were allowed and the suit stood dismissed in toto against all the defendants. The plaintiff appealed to the Supreme Court which held that although the High Court rightly dismissed the suits as against the State Government, it erred in refusing to grant relief to the plaitniff against other defendants concerned in exercise of power under Order 41, Rule 33. It was held that on the facts of the case it was not open to the plaintiff to file any cross-objection directed against other defendants who were corespondents and that, therefore, the ground upon which the High Court had refused to exercise its power under the said provision was untenable. It is thus clear that the point for consideration before the Supreme Court was entirely different from the point arising in the instant case. Even the pas* sage (vide paragraph 12) quoted below on which much reliance was placed by Sri Sak-sena does not lend support to his contention:--

'the wide wording (of Order 41, Rule 33) was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the apellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as the case may require.....'

14. It may be noted that the Supreme Court referred to and relied on the illustration to Order 41, Rule 33 which directly covered the case. Another circumstance which deserves notice is that there Were findings in plaintiffs' favour that the contracts on which the claims were founded out had in fact been entered into by some other defendants purporting to act on behalf of the State Government and that a number of hospital buildings were constructed by him in terms of the contract. The adverse findings given by the High Court and maintained by the Supreme Court was that the contracts had not been entered into by or on behalf of the State Government nor had the Government derived any benefit thereunder. It was in such circumstances that, while maintaining the decree and dismissing the suits against the State Government, the Supreme Court held that relief could and ought to be given to the plaintiff under Order 41, Rule 33, C.P.C.

15. The other rulings cited by Sri Saksena do not need any detailed discussion or consideration. In Iswarayya v. Is-warayya , the trial Court had passed a decree requiring the husband to pay a sum of Rs. 310/- per month (Rupees 150/- for the maintenance of the children and Rs. 160/- as wife's alimony). The husband appealed to the High Court which held that as the children had all ceased to be minors provision could be made for them, but increased the alimony to Rupees 260/- per month, although the wife had neither filed any appeal nor any cross-objection, purporting to exercise power under Order 41, Rule 33. The Privy Council held that this could be done under the said provision. In Hari Shankar v. Anath Nath against an award, apportioning compensation for acquisition of a property between the proprietors and lessees, only one set of proprietors had filed an appeal in the High Court. This appeal succeeded and it was held that the proprietors were entitled to a much larger amount. A decree, however, was passed in favour of those proprietors only who had appealed. The other proprietors who were made respondents to the appeal filed a review application on the ground that the High Court had omitted to consider whether a decree in their favour also should be passed under Order 41, Rule 33. The High Court allowed the review application and passed decrees in their favour as well. The validity of these decrees was questioned before the Federal Court. These decrees were upheld and it was observed in paragraph 17 of the judgment:

'In the case before us, although the appeal was by some of the proprietors and was in respect of the portion of the Tribunal's award which affected them, the ground urged in support of the appeal was common to all the proprietors and it challenged the propriety of the entire decision of the improvement Tribunal. The High Court accepted the appellants' contention and reversed the decision of the Tribunal and in allowing the appeal, it was certainly within its powers to reverse the decree with regard to the non-appealing proprietors as well, if it considered such order or decree to be necessary for doing complete justice between the parties and to avoid inconsistent decisions in the same proceeding.'

The remaining cases cited by Sri Saksena are: Kashi Ram v. Kundan Lal : AIR1956All660 ; Krishna Reddi v. Ramireddi : AIR1954Mad848 and Ramayan Prasad v. Gulaba Kuer . In the Allahabad case an appeal was preferred by a defendant against a preliminary decree for rendition of the accounts of a dissolved firm and division of its assets. The claim for rendition of accounts was found to be barred by limitation. It was held that it was absolutely necessary to dismiss the claim for share in the assets also because, the claim for accounts having been declared to be time-barred, confusion would arise if the claim for division of assets was allowed. In the circumstances, it was considered to be a fit case for exercise of power under Order 41, Rule 33. In the Madras case, the suit was by a reversioner against a number of transferees. The trial Court decreed the suit. Some defendants filed appeals; some did not. The first appellate court dismissed the suit not only as against the defendants who had filed appeals but also as against the other defendants who had not, purporting to act under Order 41, Rule 33. The plaintiff filed a second appeal. The High Court held that although the lower appellate court had jurisdiction to do so, the jurisdiction had not been properly exercised. It was observed:--

'Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it: where he failed to do so, no relief should ordinarily be given to him under Order 41, Rule 33.'

It was, however, pointed out that there are well recognised exceptions to this rule, One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. The second is where the question is one of setting mutual rights and obligations between the same parties. The third is when the relief prayed for is single and indivisible but is claimed against a number of defendants, and the appellate court finds that as a result of allowing the appeal of one defendant two inconsistent decrees would come into existence if the decree as against the defendants who did not appeal is maintained. The instant case does not come under any of these exceptions. In the Patna case, the plaintiff had filed a suit for eviction of two-defendants who had contested it on several common grounds. The suit was decreed against both, but only one of them filed an appeal. It was held that 'it was open to the appellate court to reverse the entire decree.' It may be mentioned that in that case, according to the plaintiff, defendant No. 1 was the Chief tenant and defendant No. 2 was his sub-tenant; while according to the defendants, defendant No. 2 was a co-owner and defendant No. 1 was his tenant. The appeal was filed by defendant No. 2 alone.

16. Order 41, Rule 33 of the Code of Civil Procedure has been construed by the Supreme Court in several cases other than the case cited by Sri Saksena. It is, however, not necessary, to advert to them, except one. In Rameshwar Prasad v. Shambehari Lal, AIR-1963 SC 1901 it was observed in paragraph 17:

'This rule (Order 41, Rule 33) is under the sub-heading 'judgment in appeal'. Rule 31 provides that the judgment of the Appellate Court shall ..... state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred ..... The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled. The decree, therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the appellate court to pass any decree and make any order which ought to have been made in the proceedings before it and thus could have reference only to the nature of the decree or order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or order as the case may require. The court is thus given vide discretion to pass such decrees or orders as the interest of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties.'

With respect, if we may say so, the above passage lays down in a succinct, yet comprehensive, manner the conditions for the exercise of the powers by the Appellate Court conferred on it by Order 41, Rule 33, as also the purpose for which those powers are to be exercised. The passage also lends full-support to the view expressed herein-above by us. It must, therefore, be held that the judgment and decree of the trial Court became final as against Deva Devi and could no longer be questioned by Dayali Devi either in her own right as appellant, or in her right, if any, as the legatee under the alleged will of Deva Devi.

17. Before proceeding to consider the effect of the judgment in First Appeal No. 508 of 1958 dated 21st November, 1961, we may mention that the trial Court has in the instant case under issues 7-A and 7-B held that Deva Devi, defendant No. 2, was not in possession of the property in suit in her own right and that she in any case had not been residing in any suit property for over twelve years. As against her, therefore, the suit was not barred by limitation. These findings also having become final could not be questioned.

18. The material findings given against Dayali Devi in First Appeal No. 508 of 1958, as already noted above, are (1) that she did not acquire any interest in the properties in dispute under the will of Dr. Chandan Singh; (2) that she had no legal right to challenge the will of Shamsher Singh dated July 14, 1944; (3) that she had no cause of action to institute the suit (No. 54 of 1952) or to seek any relief against Dr. J. N. Mitra, the executor under the will of Shamsher Singh. These findings were and had to be given on issue arising directly in that case as between Dayali Devi the plaintiff, and Dr. J. N. Mitra, the sole contesting defendant. These findings having become final clearly operated as res judicata in the suit filed by Dr. J. N. Mitra (No. 31 of 1958) which has given rise to this appeal. On this ground alone Dayali Devi's appeal was and is liable to be dismissed. In the subsequent suit giving rise to this appeal, copies of plaint, order of the trial Court, judgment of the appellate court (High Court) were filed and exhibited as Ex. 11, Ex. 3 and Ex. 4 respectively. In that plaint it was inter alia specifically pleaded (vide paragraph 16):

'Under the will of Dr. Chandan Singh dated 26-3-1897 -- Babu Shamsher Singh husband of the plaintiff, had no right of ownership, in any property -- and had no right to make the wills mentioned above in respect of the said property. Both the wills are null and void and ineffectual. Defendants Nos. 1 (Dr. J. N. Mitra) and 2 (Swami Shankeranand, President Ram Kishan Mission), who have been mentioned, as owners of the property after the death of the plaintiff, in the will dated 14-7-1944 and defendant No. 2 (Deva Devi) do not derive any right under the said wills. The plaintiff is the absolute owner entitled to the entire property--as the legal heir of Babu Shamsher Singh under the terms of the will dated 26-3-1897. Her rights are not affected by the order of the Hon'ble High Court granting probate.'

The principal relief claimed in that suit was for a declaration that the plaintiff was the owner of the property in suit. It will be noticed that in her suit Dayali Devi not only claimed to be the absolute owner of the suit property which according to her, belonged to the estate of Dr. .Chandan Singh, but she also asserted her full right of ownership to the complete exclusion of Deva Devi. Although Deva Devi was im-pleaded as defendant No. 3 in that suit, she neither entered appearance in the trial Court nor in First Appeal No. 605 of 1968 filed in this court by Dayali Devi in which Deva Devi was arrayed as a respondent. The High Court in its judgment dated 21-11-1961 upon a construction of the will of Dr. Chandan Singh held: 'It is clear that Dr. Chandan Singh never intended the widows of his sons to have any right higher than to subsistence allowance or maintenance. He has expressly excluded them from succession.' The finding was categorical and positive. In the face of this finding it was no longer open to Dayali Devi, in suit No. 31 of 1958 filed by Dr. J. N. Mitra to plead that she had any right to the suit-property either under the will of Dr. Chandan Singh or otherwise. Her only rights were those given to her by Shamsher Singh in his will dated 14-7-1944. In suit No. 31 of 1958 Dr. Mitra had not claimed any relief to the detriment of Dayali Devi's right under the aforesaid will dated 14-7-1944. From a perusal of the judgment (Ext 3) dated 7-11-1958 and the judgment (Ext 4) dated 21-11-1961, both, it is evident that there was no contest inter se between Dr. J. N. Mitra and Deva Devi. Therefore, no finding as to whether under the will of Dr. Chandan Singh Deva Devi acquired any interest or not was called for. The High Court was fully alive to this situation. Indeed, although the High Court made a casual and passing observation to the effect that the only legal heir whom Shamsher Singh seems to have left is his sister Deva Devi, this observation was made with reference to the will of Dr. Chandan Singh relating to the provision thereunder in regard to succession qua half the estate of Dr. Chandan Singh in which Shamsher Singh had a life interest. No finding, however was given and it was observed:--

'She (Deva Devi) did not claim any right in respect of the property left by Shamsher Singh. Though she had been arrayed as one of the defendants in the suit and as one of the respondents in the appeal before us it does not appear that she challenged the will of Shamsher Singh at any time; she did not even contest the suit giving rise to the appeal, nor has made appearance in the appeal before us, nor did she make an application for being transferred as a plaintiff in the case. Consequently, it is not possible to adjudicate upon her rights in respect of the property of Shamsher Singh in those proceedings.'

The learned Judges further stated:--

'We have not gone into the question whether the property of Dr. Chandan Singh reverted to him and after his death to his legal heirs inasmuch as the bequest of the remainder in the will of Dr. Chandan Singh was void and could not be given effect to.'

The suit having been dismissed in toto by the trial court no occasion or necessity arose for Dr. Mitra to file any appeal nor any cross-objection in the appeal filed by Dayali Devi in this court. Therefore, neither the casual observation made in the judgment of the High Court noted above in regard to Deva Devi nor the finding that under the will of Dr. Chandan Singh Shamsher Singh had not become the absolute owner on behalf of the estate could operate as res judicata in suit No. 31 of 1958 subsequently instituted by Dr. Mitra against Dayali Devi in which Deva Devi was later impleaded as a defendant at her own instance. It was, therefore, within the competence of the trial Court to give findings on the questions whether Shamsher Singh had become the absolute owner of the whole estate of Dr. Chandan Singh and whether under the said will Deva Devi acquired any interest. Findings on these questions having been given in favour of the plaintiff and no appeal having been filed by Deva Devi the findings became final as between the plaintiff and Deva Devi. We have earlier held that it was not legally open to Dayali Devi to challenge these findings in her appeal. We have also held that the findings given by the High Court in its judgment (Ext. 4) dated 21-11-1961 operated as res judicata as against Dayali Devi. It, therefore, follows that this appeal must fail and that it is not really necessary in this appeal to construe the will of Dr. Chandan Singh afresh and to decide whether the finding given by the trial court that Shamsher Singh became the absolute owner of the entire estate of Dr. Chandan Singh is correct or not.

19. There is another strong circumstance against the appellant. We have already mentioned that the application for grant of probate of the will of Shamsher Singh dated July 14, 1944 was contested by Dayali Devi and she had inter alia pleaded that her husband Shamsher Singh executed a subsequent will dated 4-1-1946. The application was registered as Testamentary Suit No. 3 of 1947. Issue No. 4 in that suit was as under:

'Was the will dated 4th January, 1946--

(a) duly executed by the said Shamsher Singh?

(b) duly attested?'

The said will was exhibited as Ext. A-1. Considerable evidence was adduced by the parties on issue No. 4 above. After considering the entire evidence and all the material circumstances, the learned Judge in his judgment dated 15-2-1949 answered the issue in the negative. A certified copy of this judgment was exhibited in suit No. 31 of 1958 as Ext. 2. Although no finding in this judgment can operate as res judicata and although nothing can really turn on this judgment, yet it shows that Dayali Devi was approbating and reprobating in regard to deposing power of her husband Shamsher Singh. When she had set up the will Ext. 1 noted above under which she claimed to be the sole and absolute owner of the properties in dispute, she certainly was clearly admitting that Shamsher Singh had full power of disposal; that is to say, Shamsher Singh was the absolute owner. When she was unable to substantiate her claim on the basis of Ext. A-1 and when she failed to prove that that was the last will and testament of Shamsher Singh, she turned round and filed a suit No. 54 of 1952 asserting that her husband Shamsher Singh had no disposing power and that both the wills dated 14-7-1944 and 4-1-1946 were null and void. Thus she was clearly approbating and reprobating which she could not be legally permitted to do.

20. Even though it is not really necessary to probe into and construe the Will of Dr. Chandan Singh or to decide whether Shamsher Singh became the absolute owner of Dr. Chandan Singh's entire estate, thereunder we may indicate our view on these matters. The learned counsel for the parties had made before us elaborate and lengthy submissions on the said questions and also cited a large number of rulings in support of their respective contentions. We do not consider it necessary to discuss the arguments and weigh their respective merits nor to discuss the rulings cited at the bar. It however, seems to us that the view taken by the High Court in judgment (Ext. 4) to the effect that as regards one-half of the estate of Dr. Chandan Singh Shamsher Singh had only a life interest is correct. Were it really necessary to give our own findings on the points in question we in all probability would have arrived at the same conclusions thereon which the High Court did in the judgment (Ext 4). Besides, there is also authority for the proposition that a judicial interpretation of a will given by a competent court of law in a previous suit should not be departed from, even though such interpretation may not be binding on the court before which the matter subsequently arises. The earlier interpretation, even though not binding, would certainly be a precedent which ought to be adhered to. (See Sahu Madho Das v. Mukand Ram : AIR1955SC481 .

21. For the reasons stated above the appeal fails and is dismissed with costs.


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