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Sujan Kunwar Vs. Bu Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All667
AppellantSujan Kunwar
RespondentBu Ali Khan
Excerpt:
civil procedure code, section 110 - application for leave to appeal to his majesty in council--'substantial question of law.' - - 1. the question before us is whether we can or ought to certify that the appeal proposed to be preferred by the unsuccessful defendants appellants against a decision of this court, dated the 3rd of august, 1922, satisfies the conditions laid down by section 110 of the code of civil procedure,,so as to make it a proper case for an appeal to his majesty in council......not affecting the right of the plaintiff in the action to recover the money claimed, but only the procedure adopted in the course of the action for its recovery. one contention was that the suit was not maintainable, because a previous action commenced by the predecessor in interest of the plaintiff had abated under order xxii, rule 9, of the code of civil procedure. we disposed of this technical objection by an argument, also technical in its nature, the effect of which was that it was quite impossible to hold that the previous suit referred to in the pleadings had 'abated' within the meaning of the rule in question. we are in no way prepared to certify that the question thus decided by us was a substantial question of law within the meaning of section 110 of the code of civil.....
Judgment:

Grimwood Mears, C.J., and Piggott, J.

1. The question before us is whether we can or ought to certify that the appeal proposed to be preferred by the unsuccessful defendants appellants against a decision of this Court, dated the 3rd of August, 1922, satisfies the conditions laid down by Section 110 of the Code of Civil Procedure,, so as to make it a proper case for an appeal to His Majesty in Council. As regards the value of the subject-matter in dispute it is admitted that the requisite conditions are fulfilled. It is, however, also admitted that inasmuch as this Court affirmed the decision of the court below, this appeal must involve some substantial question of law before we can certify it as a suitable appeal to be preferred to His Majesty in Council. We had to deal, in substance, with two points, and the petition laid before us today shows that these are the points which it is desired to raise before His Majesty in Council. Neither of these points has anything whatever to do with the merits of the case. They were both of them objections of a highly technical character, not affecting the right of the plaintiff in the action to recover the money claimed, but only the procedure adopted in the course of the action for its recovery. One contention was that the suit was not maintainable, because a previous action commenced by the predecessor in interest of the plaintiff had abated under Order XXII, Rule 9, of the Code of Civil Procedure. We disposed of this technical objection by an argument, also technical in its nature, the effect of which was that it was quite impossible to hold that the previous suit referred to in the pleadings had 'abated' within the meaning of the rule in question. We are in no way prepared to certify that the question thus decided by us was a substantial question of law within the meaning of Section 110 of the Code of Civil Procedure.

2. The other point requires to be stated in some further detail. The suit was instituted by Ram Sujan Kunwar as a Hindu widow in possession of the estate of her late husband. During the pendency of the action she adopted a son. At some stage or other in the course of the trial the question was raised whether, after this adoption, it was not incumbent upon the lady to bring upon the record as plaintiff in the suit the name of the minor boy whom she had adopted, and then to continue the action as his next friend or natural guardian. This contention was repelled by the trial court. We pointed out, when it was raised before us in appeal, that it would have been open to the trial court to accept the contention and to meet it by a formal order bringing the minor in question on to the record. At the same time, having regard to certain facts which were proved at the trial as to the circumstances under which the adoption was effected, we found that the court below had not been wrong in the procedure actually adopted by it, that is to say, in permitting the widow lady to continue the action in her own name. There was at the time of the adoption an agreement between the lady herself and the father of the boy who was given and taken in adoption, the effect of which was to vest the management, at any rate, of the estate in the hands of the lady until the boy should attain majority. It is now contended before us that a substantial question of law is here involved, because of the general principle of Hindu Law by which a widow, making an adoption to her deceased husband, at once divests herself of the estate in favour of the son so adopted. Our attention has been drawn to certain cases in which the question has been considered whether an agreement entered into at the time of the adoption, the object of which is to postpone its effect until the death of the widow, would be valid or enforceable as against the adopted son. In the case before us the validity of the agreement is not being contested, and so far as we know has never been contested, by the adopted son. It is the plaintiff in the action, that is to say the widow, who is seeking to protect the rights of the minor by continuing this action for his benefit. She instituted it at a time when she herself represented the estate of her late husband. She has been permitted to continue it on the strength of the authority exercisable by her under the agreement entered into at the time of the adoption. We are not prepared to certify that any substantial question of law of general importance is involved in our decision on this point.

3. The application is dismissed with costs.


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