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Bhagwati Dayal Vs. Musammat Dhan Kunwar and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in92Ind.Cas.1027
AppellantBhagwati Dayal
RespondentMusammat Dhan Kunwar and anr.
Cases ReferredDanby v. Tufazul Hussain
Excerpt:
civil procedure code (act v of 1908), section 109 - 'final order', meaning of--interlocutory order--appeal to privy council. - - the learned subordinate judge thereupon inquired into the question, took evidence on both sides, and came to the opinion that in point of fact the lady had entered into the compromise well knowing it to be the compromise of the suit and having adequate and proper advice and protection from people who surrounded her......to his majesty in council in consequenee of the reversal by this court of the decision of the subordinate judge, who allowed a compromise between the parties.2. the plaintiff brought a suit on the allegation that he had been adopted in 1916 by musammat dhan kunwar, a defendant, under a verbal authority given by her deceased husband, salig ram. another defendant who was impleaded was ajudhia prasad, he having obtained a mortgage on some of salig ram's property. after both the defendants had filed separate written statements denying the alleged adoption the parties were said to have come to a compromise, which was evidenced by a document, dated the 6th of august 1923, registered on the 8th of august. in the ordinary course the subordinate judge issued a commission for verification of.....
Judgment:

1. This is an application by Bhagwati Dayal for leave to appeal to His Majesty in Council in consequenee of the reversal by this Court of the decision of the Subordinate Judge, who allowed a compromise between the parties.

2. The plaintiff brought a suit on the allegation that he had been adopted in 1916 by Musammat Dhan Kunwar, a defendant, under a verbal authority given by her deceased husband, Salig Ram. Another defendant who was impleaded was Ajudhia Prasad, he having obtained a mortgage on some of Salig Ram's property. After both the defendants had filed separate written statements denying the alleged adoption the parties were said to have come to a compromise, which was evidenced by a document, dated the 6th of August 1923, registered on the 8th of August. In the ordinary course the Subordinate Judge issued a commission for verification of the deed by the pardanashin lady, Musammat Dhan Kunwar, and she denied any knowledge of the compromise or having put her thumb-impression upon any document evidencing an agreement by which the suit was to be brought to a close. She set up that if it were in fact her thumb-impression on the document, that it might have been obtained from her during a period of illness. The learned Subordinate Judge thereupon inquired into the question, took evidence on both sides, and came to the opinion that in point of fact the lady had entered into the compromise well knowing it to be the compromise of the suit and having adequate and proper advice and protection from people who surrounded her. The learned Subordinate Judge, therefore, passed a decree in the terms of the compromise.

3. From that order by which the compromise was to be recorded the lady appealed, and a Bench of this Court came to the conclusion that although in fact the thumb-impression was that of the lady, the document was not fully explained to her, that she did not understand its nature, nor had she independent advice, and thereupon they set aside the order of the learned Subordinate Judge.

4. The value of the subject-matter of the suit and the value for the purposes of the proposed appeal to His Majesty in Council is in excess of Rs. 10,000; and the contention of Mr. Iqbal Ahmad, who appears for the alleged adopted son, Bhagwati Dayal, is that the order of this High Court is appealable to the Privy Council. It happens that there is a decision reported as Shankar Bharati v. Narasinha Bharati 69 Ind. Cas. 80 : 47 B. 106 : 21 Bom. L.R. 925 A.I.R. 1922 Bom. 383 where in fact the exact question arose. Shah, A.C.J., and Crump, J., came to the conclusion, on slightly different reasoning, that the order by which a Court set aside a compromise was an interlocutory and not a final order. Mr. Justice Crump said in the course of his judgment 'All that this order does is to decide that the manner in which the lower Court disposed of this suit was incorrect, and that the suit must be disposed of on the merits, and not upon a certain compromise. I cannot see myself that this, is in any sense a final order. I take the word 'final' to be used in its ordinary sense and, therefore, to mean an order which puts an end to the litigation between the parties or, at all events disposes so substantially of the matters in issue between them as to leave merely subordinate or ancillary matters for decision'.

5. There is also a decision of this Court in Muhammad Sajjad All Khan v. Muhammad Ishaq Khan 54 Ind. Cas. 504 : 42 A. 174 : 1 U.P.L.R. (A.) 168 : 18 A.L.J: 83 in which a Bench having considered all the authorities, and specially having had regard to a decision of the Patna High Court in the case of Danby v. Tufazul Hussain 45 Ind. Cas. 290 : (1918) Pat. 1 : 4 P.L.W. 342 concluded the judgment as follows: 'All of these cases are conveniently grouped up in the Patna decision and there is thus an uniform consensus of opinion that appeals on matters interlocutory in their nature should be allowed to be preferred to His Majesty in Council only when their decision will practically put an end to the litigation and finally decide the rights of the parties'. We think that is the test which ought to be applied and in this case it is obvious' that the decision of their Lordships of the Privy Council would in one event only finally decide the rights of one party, and in the other it Avould throw the whole matter open for the trial which has never yet been held upon the merits of the action. We are therefore of opinion that this matter is not appealable to His Majesty in Council and this application must be dismissed with costs including fees on the higher scale.


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