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Sheo Pujan Upadhiya and ors. Vs. Bhagwat Prasad Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All4
AppellantSheo Pujan Upadhiya and ors.
RespondentBhagwat Prasad Singh and ors.
Cases ReferredIn Nattu Kesava Mudaliar v. Govindachari
Excerpt:
- - 9. their lordships however expressed their opinion that the section in question was clearly intended to meet special cases, such, for example, as those in which the point in dispute is not measurable by money though it may be of great public or private importance, 10. the above view appears to have been re-affirmed by lord buckmaster in radha krishna ayyar v. 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 the companies as well as questions of wide public importance in which the subject matter in dispute cannot be reduced into actual terms of money, 11. the cases referred to here are only illustrative and not exhaustive. the power is rarely exercised and should be..........was for rs. 1,930 and comprised 8 bighas 1 biswa of fixed rate holding in mouza bhaja. out of the sale consideration, rs. 700 was left for payment to parmanand mortgagee and rs. 1200 were left for payment to budh narain singh who had obtained, by transfer, the interest of musai upadhia under the mortgage, dated asarh sudi 5, sambat 1930. rs. 30 were paid to the executants for the costs of the execution of the sale-deed. the second sale-deed was executed for rs. 2,800 and comprised 4 bighas 17 biswas of fixed rate tenure in mouza bhaja. out of the sale consideration, rs. 2,400 were left for payment to parmanand and others, rs. 150 were left for payment to sheo sahai upadhia, rs. 40 for payment to the vendees towards a certain mortgage transaction of an anterior date and rs. 210 were.....
Judgment:

Mears, C.J.

1. This is an application by the plaintiffs for the grant of a certificate either under Section 110 or under Section 109(c), Civil P.C. This application arises out of a suit instituted by the plaintiffs in the Court of the Sub-Judge, Mirzapur, for a declaration that the two sale-deeds executed by Mt. Lalta, defendant 5 and Mt. Kausila, defendant 6 in favour of Bhagwat Prasad and three others (defendants 1 to 4) were executed without legal necessity and were not binding upon the reversioners of Nand Kishor Upadhia deceased.

2. Plaintiffs alleged that Nand Kishor Upadhia was possessed of an occupancy holding situate in mouza Piprahi comprising an area of 12 bighas, and that he also held a fixed rate holding situate in mouza Bhaja and had also a brit jijmani yielding an income of about Rs. 100 per year. Nand Kishor Upadhia died in 1878 leaving a widow Mt. Lalta, defendant 5. At the time of the execution of the sale-deeds, the bulk of the fixed rate holding appears to have remained in the possession of a usufructuary mortgagee named Parma Nand, who was a member of a joint family with the plaintiffs. Plaintiffs claimed to be the reversioners of Nand Kishor Upadhia and denied that Mt. Kausila was the daughter of Nand Kishor Upadhia. They alleged that the property in dispute was worth about Rs. 15,000 and had been sold for an aggregate sum of Rs. 4,730 and that there was no legal necessity for the sales. The defendants denied that the plaintiffs were the reversioners of Nand Kishor Upadhia. They asserted that Mt. Kausila was the daughter of Nand Kishore Upadhia and futher contended that the sales were for adequate consideration and were supported by legal necessity.

3. One of the sale-deeds was for Rs. 1,930 and comprised 8 bighas 1 biswa of fixed rate holding in mouza Bhaja. Out of the sale consideration, Rs. 700 was left for payment to Parmanand mortgagee and Rs. 1200 were left for payment to Budh Narain Singh who had obtained, by transfer, the interest of Musai Upadhia under the mortgage, dated Asarh Sudi 5, Sambat 1930. Rs. 30 were paid to the executants for the costs of the execution of the sale-deed. The second sale-deed was executed for Rs. 2,800 and comprised 4 bighas 17 biswas of fixed rate tenure in mouza Bhaja. Out of the sale consideration, Rs. 2,400 were left for payment to Parmanand and others, Rs. 150 were left for payment to Sheo Sahai Upadhia, Rs. 40 for payment to the vendees towards a certain mortgage transaction of an anterior date and Rs. 210 were taken for the expenses of a pilgrimage to Gaya. Both the Courts held that the plaintiffs were the next presumptive reversioners of Nand Kishor Upadhia. They also held that Mt. Kausila was not the daughter of Nand Kishor Upadhia. The Court of first instance held that

both the sale-deeds were for full consideration and the money had been taken for legal necessity for payment of antecedent debts

and that

no part of the sale consideration was farzi or without any necessity.

4. It held however that the property sold under the two sale-deeds was not worth less than Rs. 7,000 or Rs. 8,000, that there was no actual pressure upon the estate and that there was no real necessity for making the sales. The findings of this Court are clear and specific, as would appear from the following passages in the judgment:

The evidence on the record shows that the 14 bighas 3 biswas, were in no case worth less than seven or eight thousands (sic) but were sold to the defendants at Rs. 4,730 only. Further, there was no necessity whatsoever for making the sale... In my opinion, there was no legal necessity for making the sales, though the sale consideration was for legal necessity and payment of antecedent debts,

5. In view of the aforesaid findings, the Court passed a declaratory decree that the sales were not binding upon the next reversioner but that the latter would be liable to pay the full sale consideration. The lower appellate Court agreed with the trial Court on all points excepting one. It differed from the trial Court that there was no legal necessity to justify a sale. The learned Judge observed as follows:

As to whether there was any necessity for any action at all I would be inclined to say that there was. Mt. Lalta who has apparently been a widow for about 30 years. The property she inherited from her husband, although many persons would consider it amply sufficient, was incumbered at her husband's death, and whether from mismanagement or extravagance or some other cause, it is fairly obvious that Mt. Lalta has never been able to live on her income, and has gradually incumbered the property more heavily, It would be a task probably impossible and certainly unprofitable to attempt a critical review of Mt. Lalta's financial affairs for the last 30 years, but this much appears to me to be fairly obvious that when these sales were made, her affairs were in such a condition that something had to be done.

6. The learned District Judge agreed with the trial Court in holding that the price paid was considerably below the market value of the property and that Mt. Lalta was competent to sell only so much of the fixed rate tenancy and no more as would have enabled her to redeem a sufficient portion of her mortgaged occupancy tenancy to give her maintenance for the rest of her life. In the upshot he dismissed the appeal. The defendants preferred a second appeal to this Court which was registered as S.A. No. 572 of 1926. This appeal was heard by a Division Bench. The appeal was allowed by a judgment dated 8th May 1929; The decrees of the Courts below were reversed and the plaintiffs' suit was dismissed in its entirety. The ratio for the decision is to be found in the penultimate paragraph of the judgment, which runs thus:

The Courts below have undoubtedly found that the market value of the property was Rupees 7,000 or Rs. 8,000, In considering the price paid by the vendors, viz., Rs. 4,730 in the present case, it has to be borne in mind that the property was in the possession of mortgagees. Any outsider would not be anxious to purchase the property, because ho would in almost every case have to institute suits for redemption and the suits may last for many years before the vendee obtains actual possession of the property. Further when a purchase is made by a person from a Hindu widow he has got to take into consideration the fact that he will have to defend cases instituted by reversioners as has happened in the present case. Taking all the circumstances of this case into consideration, we are of opinion that the sale of the property for Rs. 4,730 cannot be considered to be for an unreasonably low price.

7. The plaintiffs are desirous of challenging the correctness of the decision by an appeal to His Majesty in Council and their grounds are set out in para. 7 of their petition. It has been argued that the plaintiffs are entitled to a certificate under Section 110, Civil P.C. as a matter of right. They argued that the value of the subject-matter of the suit and of the proposed appeal was above Rs. 10,000 and that this Court had reversed the decrees of the Courts below. We cannot accept this contention. In para. 7 of the plaint, the plaintiffs had alleged that the real value of the property sold under the two sale-deeds was not less than Rs. 15,000. The first Court found on the evidence that the value was 'in no case worth less than 7 or 8 thousands' (sic). The lower appellate Court found that the price paid was considerably below the market value of the property,' and 'that this land was sold considerably below its market value.' There is nothing on the record to sustain the contention that the value of the subject matter of the suit in the Court of first instance or of the projected appeal to the Privy Council was Rs. 10,000 or upwards. In our view therefore this case does not fulfil the requirements of Section 110, Civil P.C.

8. It has next been contended that the present case is otherwise a fit case for appeal to the Privy Council under Section 109 (c), Civil P.C. Section 109(c) Is as a very limited scope and must be applied with considerable discrimination and caution. With a view to guard against any abuse or misapplication of this section, a note of warning was sounded by the Judicial Committee in Banarsi Prasad v. Kashi Krishna [1901] 23 All 227 in the following terms:

And as it is of great importance not to allow litigants who have succeeded in the High Courts to be has passed by further appeals when there is nothing at stake but amounts of money which the Indian Legislature has decided to be too small to give a right of appeal, their Lordships will humbly advise His Majesty to dismiss the appeal.

9. Their Lordships however expressed their opinion that the section in question was

clearly intended to meet special cases, such, for example, as those in which the point in dispute is not measurable by money though it may be of great public or private importance,

10. The above view appears to have been re-affirmed by Lord Buckmaster in Radha Krishna Ayyar v. Swaminatha Ayyar A.I.R. 1921 P.C. 25 at p. 295 (of 44 Mad.).

It is plain that there may be certain 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 the companies as well as questions of wide public importance in which the subject matter in dispute cannot be reduced into actual terms of money,

11. The cases referred to here are only illustrative and not exhaustive. It has been held in numerous cases that powers under this section should be sparingly used that in order to entitle a party to the benefit of this section, the case should involve not only a question of law but a question of general principle. In Benoy Krishna v. Satish Chandra : AIR1927Cal481 Chatterjea, J., observes:

The power is rarely exercised and should be exercised only in exceptional cases of great public and private importance...We have there fore to see whether it is a case of an exceptional-nature involving questions of real importance.

12. In Nattu Kesava Mudaliar v. Govindachari AIR 1924 Mad 231 it was held that what was contemplated by Section 109(c) was a class of cases in which there might be involved questions of public importance, or which might be important precedents governing numerous other cases, or, in which, while the right in dispute was not expressly measurable in money, it was of great public or private importance,

13. In our view, where the questions sought to be agitated in the appeal involve matters of principle which not only affect the parties to the litigation but are likely to concern a large class of persons who are or may be in the same situation as the plaintiffs and in whose case the decision of the Privy Council is sure to be a guiding precedent, it is undoubtedly a fit case for appeal to His Majesty in Council. This is substantially the ground upon which our recent decision in P.C.A. No. 28 of 1931 proceeded. It ought to be borne in mind that the subject-matter of the suit or the appeal is not necessarily identical with the subject-matter in dispute between the parties. The subject-matter in dispute may not always be capable of being measured in terms of money, even in cases where the subject-matter of the suit or the appeal ;has an appreciable money value. The 'material questions which are sought to be raised before the Privy Council are:

1. Where the lower appellate Court has affirmed the decree of the trial Court that the sales effected by a Hindu widow are not binding upon the reversioners because there was no legal necessity for conveying the property at a price far below the market value, can the High Court reverse the decree of the lower appellate Court and hold that the sales were not for an unreasonably low price? 2. Was the High Court competent to reverse the aforesaid finding upon the ground that the lower appellate Court has not taken into consideration that the vendee was incurring a commercial risk in purchasing a property from a limited owner coupled with the risk of litigation with the reversioners and the mortgagee in possession? 3. Where the bulk of the husband's property is in the possession of use fructuary mortgagees but no interest is running on the debts, is the widow justified in selling the property to the detriment of the reversioners with the intention of relieving the soul of her husband from spiritual bondage

14. We are opinion that these are substantial questions of law. They involve matters of principle and of importance to the Hindu community. We therefore hold that the present case fulfils the conditions necessary for an appeal to His Majesty in Council under Section 109(c), Civil P.C. We certify accordingly.


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