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Natha Lal and anr. Vs. Babu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtAllahabad
Decided On
Reported inAIR1933All8
AppellantNatha Lal and anr.
RespondentBabu Ram and ors.
Cases ReferredBon Kwi v. S.K.R.S.K.R. Firm A.I.R.
Excerpt:
- - laraiti and the latter may effectively cut nathu lal off by taking a boy in adoption, if she be in possession of the 'necessary authority......the parties to the suit and not to questions affecting the title of one of the parties to the suit or suits that may hereafter be brought but, were not then pending. a similar view was taken by rutledge, c.j., and chari, j., in bon kwi v. s.k.r.s.k.r. firm a.i.r. 1926. rang. 128.6. we are of opinion that the case now before us does not with reference to its valuation fulfil the requirements of section 110, civil p.c. it has been next contended that the case is otherwise a fit case for appeal to his majesty in council and should be certified as such under section 109(c), civil p.c. in special cases, where the points in dispute may not be measurable in money and yet there may be substantial questions of law of sufficient public or private importance an appeal to the privy council may.....
Judgment:

Sen, J.

1. This is an application by the plaintiffs for leave to appeal to His Majesty on Council from a decree of this Court in a second appeal which reversed the decrees of the Courts below and dismissed the plaintiffs' suit. The application purports to be under Sections 109(c) and 110, Civil P.C. The facts which have given rise to this application lie within a narrow compass and are these: --Ram Sahai, Jai Sukh Ram and Sita Ram were members of a joint Hindu family, which possessed considerable property. On 17th April 1873, Sita Ram separated. Jai Sukh Ram died in 1891 leaving a widow Mt. Jamna and three daughters Mt. Naraini, Mt. Ram Dei and Mt. Mullo. A dispute arose between Mt. Jamna and Ram Sahai, the former claiming that her husband was separate from Ram Sahai and the latter asserting that he died as a member of a joint family with him. The dispute was referred to arbitration and an award was given on 9th February 1892 under which the entire 20 biswas zamindari in mouza Jauharpur alias Rasulpur with Nagla and a plot of land bearing No. 2770 situate in Qasba Koil and half of a haveli situate in Gudri were allotted to Mt. Jamna 'free from all claims, liabilities and debts.'

2. The award provided that whenever any one of the parties intended to sell half of the haveli, the cosharer of the other half would be entitled to preempt. The title-deeds relating to the zemindari of mouza Jauharpur and of the land in Koil were directed to be handed over to Mt. Jamna. On 25th April 1905, Mt. Jamna executed a deed of gift of the entire property obtained by her under the award to her three daughters under which Mt. Naraini got three annas, Mt. Ram Dei six annas and Mt. Mullo seven annas. The two sisters, Mt. Naraini and Mt. Ram Dei had been married to two brothers Chiranji Lal and Ram Dayal. Mt. Naraini died in February 1923, without leaving any issue. Mt. Ram Dei and Ram Dayal are dead. They left a son Nanak Chand. Upon the death of Nanak Chand, the six annas share of Mt. Ram Dei devolved upon Mt. Laraiti, widow of Nanak Chand, who is still alive.

3. The suit which has given rise to these proceedings relates to the three-annas share of Mt. Naraini Nathu Lal; plaintiff 1, is the nephew of Chiranji Lal, husband of Mt. Naraini. He sold' a 1/3rd share in the zemindari of Jauharpur to Budh Sen, plaintiff No. 2. The suit was launched against Babu. Ram and three others who are the sons of Mt. Mullo. The plaintiffs claimed to recover possession of a share-in the zemindari and the house in Gudri together with mesne profits. The suit was valued at Rs. 4725 with the: following details: Value of zamindari. Rs. 3750; value of house. Rs. 375-and mesne profits Rs. 600. Plaintiffs alleged that Ram Sahai and Jai Sukh. Ram were members of a joint family that upon the death of Jai Sukh Ram the entire prtoperty had devolved upon Ram Sahai by rule of survivorship that Mt. Jamna, widow of Jai Sukh Ram, had no title to the property under the Hindu law of inheritance; that on. a true construction of the award, dated 9th February 1892, an absolute interest had been carved out to Mt. Jamna with respect to the property allotted toiler; that she was competent to execute the deed of gift in favour of the daughters, and that in any case, her possession between 9th February 1892 and 28th April 1905 was adverse against the true owner and had matured into title.

4. The defendants traversed all these allegations. The Court of first instance decreed the plaintiffs' suit on' 26th March 1928 upon the findings that Jai Sukh Ram at the time of his death was a member of a joint Hindu family with Ram Sahai, that Mt. Jamna had become the absolute owner of the property under the award, dated 9th February 1892, that since the award she had remained in adverse proprietary possession for over 12 years till the execution of the deed of gift and that title had devolved upon. Nathu Lal, the plaintiff, by rule of inheritance. The lower appellate Court affirmed this decree on 21st June 1928. The defendants filed a second appeal (S.A. 1395 of 1928) to this Court. On 22nd April 1931, a Division Bench of this Court decreed the appeal and reversed the concurrent judgments of the. Courts below. The ratio of this decision was that Mt. Jamna upon the death of her husband had put forward a claim to the property in the capacity of a Hindu widow, that in the arbitration proceedings she had represented the estate of her husband, that she did not acquire any absolute title to the property by force of the award, dated 9th February 1892 and that her possession was that of a Hindu widow and not adverse. The plaintiffs are anxious to prefer an appeal to His Majesty in Council inter alia upon the following grounds:

(a) That the agreement of reference and the award have been misconstrued and that under the latter document, an absolute estate was acquired by Mt. jamna. (b) That- even though Mt. jamna was originally claiming a life interest in the entire estate left by her husband, there was no legal bar to her acquiring an absolute proprietary title to a portion of the said estate either as the result of the decision of the arbitrators or as the result of an agreement with Ram Sahai, and (c) That this Court was not justified in oversetting the concurrent finding of fact about Jai Sukh Ram and Ram Sahai being members of a joint Hindu family at the time of the latter's death, a finding which materially affected the nature and character of Mt. Jamna's possession.

5. The amount or value of the subject matter of the suit in the Court of first instance was Rs. 4,725. The amount or value of the subject-matter of the projected appeal to His Majesty in Council is also below Rs. 10,000. it has however been contended by the plaintiffs that the decree in this case involves directly or indirectly some claim or question to or respecting property of value of Rs. 10,000 or upwards and that the case therefore fulfils the requirements of Section 110, Civil P.C. It has been argued that, although the present claim relates to Mt. Naraini's property, the decree would affect the plaintiffs' right with reference to the property of Mt. Ram Dei which is at present in the possession of her daughter-in-law Mt. Laraiti, the value of which ' is exactly twice the value of the property now in dispute. No cause of action has up till now accrued in plaintiffs' favour with reference to the six annas share of Mt. Ram Dei. During the lifetime of Mt. Laraiti, the plaintiff No. 1 has no title to the property and has a mere shadowy right of expectancy, which may never materialize. Nathu Lal plaintiff may die in the life-time of Mt. Laraiti and the latter may effectively cut Nathu Lal off by taking a boy in adoption, if she be in possession of the 'necessary authority. The words:

must involve directly or indirectly some claim or question to or respecting property of Rs. 10,000 o-c upwards in value

in Section 110 Civil P.C. refer to questions arising between parties to a pending suit and not to questions relating to the_ title of only one of the parties which might be made the basis of a prospective suit. It has been held by Knox and Blair, JJ., in Hanuman Prasad v. Bhagwati Prasad [1902] 24 All 226, at p. 238 that when it is laid down that the decree must involve directly or indirectly some claim or question to or respecting property of Rs. 10,000 in value or 'upwards, the reference is to suits in existence and not to suits in gremio futuri. In Raja of Ramnad v. Kamith Ravathan A.I.R. 1922 Mad. 34. Spencer and Kumar Shashtry, JJ., held that the reference in the Civil P.C. was evidently to questions arising between the parties to the suit and not to questions affecting the title of one of the parties to the suit or suits that may hereafter be brought but, were not then pending. A similar view was taken by Rutledge, C.J., and Chari, J., in Bon Kwi v. S.K.R.S.K.R. Firm A.I.R. 1926. Rang. 128.

6. We are of opinion that the case now before us does not with reference to its valuation fulfil the requirements of Section 110, Civil P.C. It has been next contended that the case is otherwise a fit case for appeal to His Majesty in Council and should be certified as such under Section 109(c), Civil P.C. In special cases, where the points in dispute may not be measurable in money and yet there may be substantial questions of law of sufficient public or private importance an appeal to the Privy Council may be justified. We have indicated some of the grounds, which are sought to be raised in this case land are of opinion that these grounds raise substantial questions of law and are of vital importance to the parties before us. We therefore certify that this case fulfils the requirements of Section 109(c), Civil P.C.


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