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Pratap Kishore and anr. Vs. Gyanendranath - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 208 of 1947
Reported inAIR1951Ori313
ActsBengal, Agra and Assam Civil Courts Act, 1887 - Sections 38(2); Code of Civil Procedure (CPC) , 1908 - Sections 9 - Order 2, Rule 1 - Order 20, Rules 2 and 8; Evidence Act, 1872 - Sections 17, 21, 31, 64 and 101 to 103; Hindu Law
AppellantPratap Kishore and anr.
Appellant AdvocateD. Mohanty and ;Muralidhar Mohanty, Advs.
Respondent AdvocateM.S. Rao, Adv.
DispositionAppeal dismissed
Cases ReferredSee Venkatapathi v. Mahomed Sahib
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, j.1. this is a pltf.'s second appeal against the judgment of sri c. c. coari, dist. j. cuttack, affirming the judgment of sri g. c. de, addl. subordinate judge, cuttack, in o.s. no. 25 of 1938,2. pltf. 1 is the son of one bhagat charan mohanty who was impleaded as deft, a in the suit but was transposed as pltf. 2 on 9-6-40 when the trial was opened. the first pltf. who was a minor-raised the suit through his next friend, suriyamoni dei, said to be his father's sister, for a declaration that deft. 1 gyanendranath mohanty, is not the adopted son of nrusingbo charan mahanty, the deceased uncle of pltf 2 of pltf. 2. he alleged that nrusingho oharan mohanty had married pramila sundari the sister of gyanendraca h in 1921; that on account of this relationship pltf. s was looking upon.....

Panigrahi, J.

1. This is a pltf.'s second appeal against the judgment of Sri C. C. Coari, Dist. J. Cuttack, affirming the judgment of Sri G. C. De, Addl. Subordinate Judge, Cuttack, in O.S. No. 25 of 1938,

2. Pltf. 1 is the son of one Bhagat Charan Mohanty who was impleaded as deft, a in the suit but was transposed as pltf. 2 on 9-6-40 when the trial was opened. The first pltf. who was a minor-raised the suit through his next friend, Suriyamoni Dei, said to be his father's sister, for a declaration that deft. 1 Gyanendranath Mohanty, is not the adopted son of Nrusingbo Charan Mahanty, the deceased uncle of pltf 2 of pltf. 2. He alleged that Nrusingho Oharan Mohanty had married Pramila Sundari the sister of Gyanendraca h in 1921; that on account of this relationship pltf. S was looking upon Babu Lakshmimdhar Mohanty, the natural father of deft. 1 as 'Murabi' & that Lakshtnidhar Babu had a commanding influence over pltf. a. It was further alleged that pltf. 2, Bhagati Chacan, was subject to a sort of sentimental weakness and weakness of mind in the presence of deft. 1's sister the widow of Nrusirgho Charan. It is said that taking advantage of his dominating position, Lakahmidhar Babu induced pltf. 2 to execute certain documents;, purporting to admit the adoption of deft. 1 by Nru. singho, that there had, in fact, been no such adoption, & that consequently those documents were. void. The pltf. accordingly claimed a declaration that the alleged adoption of deft. 1 by Nrusinghon Charan is not true. The case of deft. 1, on the other hand, is that there had, in fact, been a regular adoption by Nrusingho Charan on IS 7-1934, followed by the due observance of all the necessary rites & ceremonies, in the presence in the presence of pltf. 2 at the house of Babu Lakshmidhar Mohanty & that he (deft. 1) performed the funeral & Sradh ceremonies of Nru. singho Charan, that the documents speaking to the adoption having taken place were genuine & narrated what actually took place & were not brought,, about, as alleged by the pltf., at the instance of his natural father due to his dominating position. Pltf. 2, Bhagat Oharan Mohanty, filed a lengthy statement denying the adoption & alleged that in a weak moment he agreed to set apart some property in the name of deft. 1 Gyanendranath so that his sister, the widow of Nrusingho, may live. in comfort with hen brother.

3. The main issue on which the decision of the suit rested was issue 7: 'Is deft, the duly adopted eon of the late Nrusingho Charan Mohanty?' Another issue of no less importance but which appears to have been raised only incidentally, was issue 6: 'Were the pltfs., members of a joint Mitakshara family with the daft, or with the late Nrueingho Charan?'

4. The case was tried by Mr. Gopal Chandra De, Addl., Subordinate Judge, Guttaek, who held that the adoption of deft, l by Nmsingho Oharan had been duly proved & directed the dismissal of the pltfs suit. On the issue regarding the jointness or separateness of the family his finding was that there was no separation between NruBingho Charan & Bhagat Oharan & that they were in joint possession of the entire family properties.

5. On appeal by the pl'fs. the Dist. J., Mr. Maher, held that the evidence on the question of adoption was evenly balanced, so much so that 'a feather on either scale would tip the balance.' As the burden of proof rested on the party alleging the adoption, the learned Dist. J. held that the party on whom this burden rested must be held to have failed to discharge it. He accordingly allowed the appeal & set aside the finding of the Addl. Subordinate Judge.

6. Against this decision of the Dist J. there was a second appeal by deft, l to the H. C. The H. C. held that the learned Dist. J. if the was unable to make up his mind as to which set of witnesses should be preferred against the other set, ought to have affirmed the decision of the Addl. Subordinate Judge. The learned Dist. Judge also did not go into the question of the joint status of the family & disposed of the appeal purely on the question of adoption. Nor was the point raised in second appeal before the H. C. The H. C, however, allowed the second appeal set aside the judgment of the learned Dist. J., & remanded the appeal to his Ct. for a re hearing.

7. After remand the appeal was re-heard by Mr. Coari who had meanwhile succeeded Mr. Maher as Dist. J. Mr. Coari affirmed the finding of the trial Ct. on the issue of adoption but on the other issue he differed & held that the family of Bhagat & Nrusingho Charan had been divided. He dismissed the appeal & upheld the judgment & decree of the learned Addl. Subordinate Judge, It is against this judgment of Mr. Court that this Second appeal by the pltfs. is directed.

8. Several points were raised by learned counsel for the applta. & were not only ably but fairly placed before the Ct.

9. The first point which appeared to me at one time attractively subtle raises the question of the jurisdiction of Mr. Coari to hear the appeal after its remand by the H. C.

10. To appreciate this point a few facts require to be stated. Mr. Gopal Chandra De the Addl. Subordinate Judge who tried the suit recorded evidence & heard arguments. Hearing was concluded on 17-6 40 & judgment was reserved. On 10-7-40 Mr. De recorded the following order in the order sheet:

'The trial of this Bait which involves some complicated questions of law & taut continued for one month & eight days & was closed on 17-6 40. On 21 6-40 I fell seriously ill & remained practically confined to bed till 10 7-40, On account of this illness I be became extremely weak & id spite of my best attempts I could not write out the judgment. I will proceed on leave preparatory to retirement with effect from tomorrow.'

The next order, numbered as 121 & bearing the same date, reads as follows: 'Be-transferred to the file of the Subordinate Judge under orders of the Dist. J.' This order was written out by Mr. De & on the very earns day Mr. Coari who was then the Subordinate Judge recorded an order in the following terms:

'Received by transfer from the Addl. Subordinate Judges Ct. Put up on 12-7-40 for hearing arguments. Inform advocates of both parties. of both parties.'

The advocates of both parties were duly informed on 12-7 40. The case underwent two adjournments for hearing arguments afresh. But in the mean while the case was sent back to Mr. De, who had gone on leave, under orders of the Dist. J.; & there, after Mr. De recorded the following orders: ' Received the record under orders of the Dist. J. for writing the judgment' On 9 8 40 Mr. G. C. De signed the judgment which he-had prepared sent it to the Subordinate Judge Mr. Coari for pronouncement in Ct. On the very same day Mr. Coari gave notice to the parties that the judgment would be delivered. After delivery of judgment the following order was recorded in the order sheet by Mb. Coari:

'The judgment written by Mr. G. C. De Addl. Subordinate Judge on leave, is delivered by me today. The suit is dismissed with costs.'

On 22 8-40 the decree was drawn up in accordance with the judgment delivered on 9-8-40 & was signed by Mr. Coari.

11. On these facts it is urged by Mr. Mohanty, learned counsel foe the applts, that Mr. Coari was not competent to hear the appeal after remand by the H. C. inasmuch as he had pronounced the judgment of the trial Ct. on 98-40 & signed the decree as Subordinate Judge on 22-8 40. This argument is founded on the language of Section 38 (2) Bengil, Agra & Assam Civil Courts Act (Act xii) [12] of 1887) which is in the following terms:

The Presiding officer of an appellate civil Ct. under this Act shall not try an appeal against a decree or order pasted by himself in another capacity.'

It is argued that the decree of the trial Ct. was passed by Mr. Coari, as Subordinate Judge, & that the judgment delivered on 9 8-1940 was his judgment. It should be noticed that this point was not taken before Mr. Coari when the appeal was reheard by him as Dist. J. after its remand by the H. C. & the applts. proceeded throughout on the basis that the judgment appealed against was that of Mr. G. C.'De, Addl. Subordinate Judge, Cuttack, This is also clear from the fact that the decree drawn up in accordance with the judgment pronounced on 9 8.1940, is specifically mentioned, in the title, as the 'decree passed in the Ct, of the Addl. Subordinate Judge' & the decretal portion itself says:

'This suit coming on from 10-5-1940 to 17-8-1940 for final disposal before Sri G. C. De, Addl. Subordinate Judge, in the presence of . . .& it is ordered & decreed that the suit be dismissed with costs.'

The decree was, as mentioned already, drawn up later, on 32 8-1940, & was signed by Mr. Coari as Mr. De had gone on leave preparatory to retirement. In the memorandum of appeal filed before the Dist J. in the first instance (Mr. Maher) the applts. described themselves as 'being aggrieved by the judgment & decree in 0. S. No 25 of 1938 by Sri Q. G. De Addl. Subordinate Judge, Cuttack on 9-8-3940. In the grounds of appeal also 'the decree of the learned Addl. Subordinate Judge' is referred to throughout as the judgment against which the appeal had been preferred. But quite independently of these considerations, what is required to be examined is whether Schedule 8 (2), Bengal, Agra & Assam Civil Courts Act of 1887, would operate as a bar to the hearing of the appeal by Mr. Coari as Dist. J. on the ground that the judgment delivered by him on 9-8-1940 & the decree drawn up later on 22-8-1940 in pursuance of that judgment can be deemed to be a decree or order passed 'by himself in another capacity.'

12. The ordering portion of the judgment is as follows;


Hence it is ordered that the suit be dismissed with costs & future interest at 6 per cent, per annum. Pleader's fee 5 per cent.

Sd. Gopal Chandra De,

Addl. Subordinate Judge,


Delivered by me.

Sd. C.C. Coari.

Sub judge


13. Section 33, Civil P. C. lays down that the Court, after the case has been heard, shall pronounce judgment & on such judgment decree shall follow. Order 20 Rules 1 to 3 lay down when & in what manner a judgment is to be pronounced. Rule 2 says that a ''Judge may pronounce a judgment written but not pronounced by his predecessor'. Rule 8 of 0. 20 says:

'Where a Judge has vacated office after pronouncing judgment, but without signing the decree, the decree drawn up in accordance with such judgment may be signed by his successor, or if the Ct. has ceased to exist , by the Judge of any Ct. to which such Ct, was subordinate.'

It is significant that in Section 33 & Order 20 Rule 1, the word used is 'Court' while in Rules 2 to 8 the word used is 'Judge'. The use of the different words is deliberate & not accidental. It is the function of the Ct. which tries a case to pronounce judgment on it in open Ct. after notice has been given to the parties or to their pleaders. The actual delivery of the judgment may be done by a Judge who succeeded the Judge who heard the case or wrote the judgment. Such a procedure is absolutely necessaries for the convenience of the litigants as. indeed, it frequently happens that a Judge who has heard arguments & written out his judgment is prevented by illness or other cause from attending Ct. to pronounce it. It is doubtless true that in such cases the judgment so prepared, until it is pronounced in open Ct. merely remains a memorandum prepared by the Judge & does not take the effect of a judgment, & that it comes into effect as a judgment only after it has been pronounced in open Ct. in the manner prescribed. It is also clear from the language of R. 2 that the Successor Judge is not bound to pronounce the judgment prepared by his predecessor it is left to his option either to deliver the judgment prepared by his predecessor Judge who does no more than read in open Ct. a judgment prepared by his predecessor, adopts that judgment as his own, & can it be said by any stretch of language that the judgment so pronounced becomes the judgment of the successor Judge himself? A judgment is defined as 'a statement given by the Judge of the grounds of a decree or order'. How can a judge, who has not heard the evidence or the arguments in a case, give a statement of the grounds for the decree in that case? The statement of the grounds of the decree is given by the Judge who writes out the judgment after hearing arguments & taking evidence It is a judicial act of a Gt. But the mere reading of that judgment in open Ct, by his successor is an official act in his capacity as Judge. There is a fundamental distinction between the two acts. It follows, therefore, that the judgment read out in open Ct. on 9-8 1940 by Mr. Coari is the judgment of the Ct. of the Addl. Subordinate Judge, Mr. G C. De, who wrote it, though it was pronounced by his successor under Order 20, Rule 2, C. P. C. I am accordingly not disposed to accede to the argument raised at the bar that the judgment read out by Mr Coari on that date became, by a fiction of law, his own judgment so as to render him incompetent to hear an appeal against (sic) within the meaning of Section 38 (2) of the Act xii [12] of 1887. The ordering portion of the judgment, quoted above, makes it absolutely' clear that the judgment pronounced was that of Sri G. G. De. Addl. Subordinate Judge, & that Mr. Ooari did no more than pronounce it in open Ct.

14. There can also be no dispute that the judgment pronounced by Mr. Coati on 9-8-1940 was that of his 'predecessor'. It is obvious from the order sheet that the case was transferred to the file of Mr. Goari, who was then the Subordinate Judge, on 10-7-1940 & that he posted it for hearing to 12-7-1940. Thereafter, however, under orders of the Dist. J. the case was re-transferred to Mr. De for writing out the judgment as he had held the trial. It is true that at the time the judgment was pronounced the case was on the file of the Subordinate Judge Mr. Coari. But this does not detect from the fact that, so far as the suit itself is concerned Mr. De was the predecessor as he had recorded the evidence & heard the arguments & that Mr. Coari was his successor in the sense that the Suit was transferred to Mr. Coari's file pending delivery of judgment. It does not appear to me to be correct to Bay that Mr. Coari intended to adopt the judgment; of his predecessor as his own. This is very dear from the order passed by him on 10-7-40-immediately after the transfer of the case from the file of Mr. De-to the effect that it should be put up on 12-7-40 for re-heating arguments. And but for the fact that the case was once again re-transferred to Mr. De, who had gone on leave, for writing out the judgment, Mr. Coari would have proceeded to hear the case afresh. By 9-8-40 the judgment prepared by Mr. De was ready. It was signed & sent to Mr. Coari on that day, who did nothing more than pronounce it in open Ct, after giving notice to the parties; in other words, Mr. Coari, as Subordinate Judge, delivered the judgment written by the Addl. Subordinate Judge while on leave.

15. It is also beyond dispute that, a judgment written by a Judge who Has gone on leave is a |valid judgment though at one time there was some difference of opinion on the point prior to the enactment of Civil P. C. (Act xiv [14] of 1882) which, by Section 199, corresponding to Order 20 Rule 2 of the present Code, enabled a Judge to pronounce a judgment written by his predecessor. In Parbati v. Higgin, 17 W. R. 475, the judgment was written by the Subordinate Judge who had been relieved of his office, but it was held that the judgment could not be impeached on that ground, Jackson, J. observed:

'He heard, & to all intents & purposes determined, the suit & gave judgment; but this tenure of that particular judicial office having expired before judgment could be pronounced, that judgment which was the judgment of the Judges who heard the case was pronounced as matter of form by his successor in open Ct..'

The argument that the judgment should be written by a Judge when he is actually holding the office & before ha has gone on leave or left his office otherwise, was negatived in Sunder Kuer v. Chandreshwar, 34 Cal. 293: (11 C. W. N. 501). Even when a Judge ceases to exercise jurisdiction in the place where the cause of action in that suit arose & goes to another place by transfer, he can write out his judgment & send it to his successor for delivery: Satyendra v. Kashura, 35 Cal. 756: (12 C. W. N. 682 F. B.). This case was followed in Basant Bihari v. Secretary of State, 35 ALL. 368: (19 I. C. 785), where the Dist. J. had ceased to hold the office at the time of his writing the judgment. In Mt. Lilavati v. Chhotey Singh, 42 ALL. 362: (A. I. R. (7) 1920 ALL. 332) an officiating Sub. ordinate Judge had reverted to his substantive appointment of Munsif when he wrote the judgment in the case which he had heard as Officiating Subordinate Judge. The use of the word 'predecessor' in Order 20, Rule 2, is unqualified & would, therefore, apply to any officer who had tried the cafe, whether be is still in service, or has been transferred, or has gone on leave: See Baram Deb v. Debi Dutt, 53 ALL. 133; (A. I. R. (18) 1931 ALL. 90) & Lakhiama v. Loke Nath Das, 5 Pat. L. J. 147: (A. I. R. (7) 1920 Pat. 578).

16. Considerable stress was, however, laid on the observations of Page C. J. in Hargulal v. Abdul Gani, 14 Rang. 136; (A. I. R. (23) 1936 Rang. 147 F. B.) where it has been suggested that if the succeeding Judge is in doubt as to the correctness of the judgment written by his predecessor he ought either to act in accordance with the provisions of Order 18, Rule 15, C. P. C. or to hear the case de novo. Mr. Mohanty argues that before pronouncing judgment on 9-8-40 Mr. Coari must have used his discretion & agreed with the correctness of his predecessor's judgment & to that extent that judgment should be deemed to be his own. I can find no material to warrant this presumption, nor does the language of the Code necessarily lead to such a presumption, All that o. so, B. 2 says is that it is optional with the succeeding Judge to pronounce his predecessor's judgment; he may either pronounce that judgment or order a re-trial & hear the case afresh. The language of the rule does not warrant the assumption that the succeeding Judge, who merely pronounces in open Ct. a judgment prepared by his predecessor, necessarily expresses himself as being in agreement with the views contained in that judgment; or that when he does not pronounce that judgment & orders a retrial he necessarily expresses himself as being in doubt as to the correctness of that judgment. Nor does the Code say anywhere that the judgment, prepared by the predecessor & pronounced by the successor should be deemed to be that of the Judge who reads it & not of the Judge who has written it. The observations in the Rangoon case relied on by Mr. Mohanty appear to me to be rather loosely worded & in any view ware not necessary for the decision of that case.

17. The foundation of Mr. Mohanty's contention is the language used in Section 38 (2), Bengal, Agra & Assam Civil Courts Act, which prohibits the hearing of an appeal by a presiding offices against 'a decree or order passed by himself in another capacity'. It is argued that the decree drawn up on 22-8-40 by Mr. Coari amounts to a decree passed by him in his capacity as Subordinate Judge & that as such he had no jurisdiction to hear an appeal against that decree. It is true that Mr. Coari signed the decree, but can it be said that he himself passed it when all that he did was to draw up a decree in accordance with the ordering portion of the judgment of his predecessor that he pronounced? The ordering portion of the judgment which says that 'the pltf.'s said shall be dismissed' was passed by the Addl. Subordinate Judge & only read out by Mr. Coari on 9-8- 40; & the decree drawn up by Mr. Coari on 22-8-40 was in pursuance of this order. The expression 'passing the decree' occurs at several places in Civil P. C. Older 20, Rule 11 says that

'The Ct, may for sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed etc. etc.'.

Rule 12 says that

'The Ct. may pass a decree for possession of the property in a suit for recovery of immovable property.'

The use of the expression ' passing a decree' in the several rules of the Code leads me to think that

'passing a decree' is a judicial act of the Ct. which tries the suit & that the suit itself terminates with the passing of the decree which, according to the definition section

'conclusively determines the of the rights. of the parties with regard to the mutters in controversy.'

The decree is the formal expression of the final adjudication. The Judge who writes out the judgment makes a formal expression of what the result of his judgment should be. On a plain reading of the Code it is apparent that the Judge who merely signs the decree, as indeed was done in this case by Mr. Coari, cannot be said to have passed it unless he himself had written the judgment after taking evidence & hearing arguments, because the decree must conform the judgment of the Ct. which delivers it. Mr. Coari who signed the decree in this case did nothing more than see to it that it was drawn up in accordance with the judgment with the judgment of the Add]. Subordinate Judge which he read out in Ct. The word 'pass' has several meanings, but used with reference to processes of law it means 'to decide or adjudicate between the parties.' Thus a verdict or a sentence, or a judgment is said to be 'passed' which means 'given' or 'pronounced.' It has accordingly been held that a Judge who passes a decree or makes an order within the meaning of Order 47, Rule 2, Civil P. C. is the Judge who expresses in his judgment what the decree is & is responsible for its substance, while the Judge win signs the decree, , if he is a different man, is responsible only for its verbal accuracy. See Tamijuddi v. Satyashanker, 32 I. C. 101 : (A.I.R (4) 1917 cal 673). It is also well settled that a decree comes into existence from the moment the judgment itself that constitutes the decree. As was observed by the Judicial Committee in Mungni Ram v. Guru Sahay, 16 I. A. 195 at p. 200 (17 cal. 847 P. C.)

'when a person has the judgment of the Ct. that he shall have a decree in his suit, it may be said that he then obtains his decree. The decree, when it is drawn up afterwards, relates back to the time of the judgment.'

The decree is. therefore, in existence from the moment the judgment is pronounced. I have, therefore, no hesitation in arriving at the conclusion that the decree against the pltf. was passed by Mr. De, the addl. Subordinate Judge, in the ordering portion of his judgment dated 9-8-40 though it was actually drawn up& signed by Mr Coari on 22-8-40.

18. The argument of Mr. Mohanty, based on the language of Schedule 8 (2), Bengal, Agra & Assam Civil Courts Act, is, therefore, untenable. The rule laid down in that section is no doubt based on public policy & affects the jurisdiction of the Judge who hears an appeal but that has no application in this case. If I were convinced that the decree passed by the trial Ct. is the decree of Mr. Coari himself I would hold that the hearing of the appeal by Mr. Coari was without jurisdiction. If the case came within the strict meaning of Schedule 8 (2) the proceedings would be without foundation & would be of no avail or effect. But I should also like to, point out that a mere deviation from a rule of procedure cannot be more than an irregularity & need not necessarily affect jurisdiction is the power of a Ct. to hear & determine a cause, to adjudicate or exercise judicial power in relation thereto. A rule of procedure is for the benefit of the litigant public or for the speedy dispatch of judicial work. A contravention of a rule of procedure would be curable by consent or waiver but an inherent lacks of jurisdiction cannot be cured by consent because consent cannot give jurisdiction. Beating these principles in mind I have arrived at the conclusion that Mr. Coari at the time he pronounced the judgment of Mr. De, did cot apply his judicial mind nor did he decide the case himself & that, accordingly, it cannot be contended that he passed the decree in the suit & thereby made himself ineligible to hear the appeal

19. It was next argued that Mr. Coari had developed a bias against the pltfa. & was, therefore, incompetent to hear the appeal. This contention is sought to be rested on an order parsed by Mr. Coari, while Subordinate Judge, disposing of an appln. filed by the pltfs. to amend the issue regarding the joint or separate statu of the two brothers, Bhagat & Nrusingho. The order in question is No. 28 of 15-8-39. On a perusal of the order, however, it appears clear to me that Mr. Coari never went into the merits of this point at all, nor did he record evidence thereon with a view to come to a decision one way or the other. All that appears from the order is that he left it open to the pltfs. to make up their minds as to whether they would lead evidence on the point. The order was entirely non committal in its effect. this argument, therefore, rests on tenuous material. Even if there were any substance in the contention it was open to the pltfs. to raise the point before Mr. Coari when he took up the appeal for hearing. The appeal, it should be remembered, was pending before Mr. Coari for over two years & was argued by no less eminent a counsel than Dr. P. K. Sen. The point-if it had any force in it was never raised & must be taken to have been waived by the applts. I am, therefore, not impressed by the argument that Mr. Coari had developed any leaning in favour of one party or the other by reason of his one time contact with the suit in disposing of an interlocutory appln.

20. The two other questions that were raised are issues of fact on which the Ct. below has held against the pltfs. These relate to (1) the jointness or separateness of the two brothers Bhagat Charm & Nrusingho Charan & (2) the fact whether the adoption had taken place.

21. It was suggested by Me. Mohanty that it was not open to the lower appellate Ct to go into the question of the joint status of the pltfa. family as the remind order of the H. C. did not specifically direct the lower appellate Ct, during re-hearing, to record a finding on that issue. I am unable to appreciate this argument. As I have said earlier, the question of jointness was not gone into by Mr. Maher nor was it argued before the H. C. Mr. Maher did not think it necessary to canvass the question of separateness as, in his opinion, the point was not very material foe the disposal of the appeal as according to him the appeal could be disposed of solely by recording a finding on the issue whether the party on whom lay the onus of establishing the adoption set up by him, discharged that burden or not. In his opinion, the deft, failed to discharge the onus cast on him & accordingly the pltfs were entitled to a decree.. That was the only question on which he recorded a finding & that finding was reversed by the H C. in second appeal. It is clear from the above that the entire matter (including a determination of the question of separateness or jointness of the pltfs.' family on which the trial Ct. had recorded a finding) was at large before Mr. Coari when he took up the appeal for re-hearing & it was perfectly open to him to go into that question & arrive at his own finding. In this Ct. Mr. Mohanty was asked whether this question might lie left open by us but he appeared to be in two minds & the parties not agree that matter should be left open by us particularly as evidence had been let in & findings recorded on it by the Cts. of fact below.

22. The trial Ct. held that in the absence of evidence that Achyutananda, father of Bhagat & Nrusingho, treated the properties said to have been acquired by him as his separate & exclusive properties the presumption would be that those properties were thrown into the ancetral stock & formed a part of the joint family property. It was suggested in evidence that Achyutananda had only about two acres of ancestral property & that the rest of the enormous property that he had acquired ware purchased out of his own earnings in the names of different persons. There is, however, no evidence as to what the income from the two acres & odd of family property was & whether the income would have been sufficient to constitute the nucleus for the later acquisitions by Aohyutananda. A member of the joint family who acquires property may allow other members of that joint family to manage it or to enjoy the income arising out of it. This may be due to a variety of reasons. But this circumstance alone cannot militate against the presumption that such property acquired by a member out of his own earnings, constitutes his self-acquisition. It is not unusual in a joint family, for its members to utilise the income so long as they are joint. The real test in such oases is the intention behind the act, Does that act indicate that the acquirer intended to throw it into the common stock & not to claim separate title thereto It certainly cannot be said that the moment a member acquires property with his his own earnings 'he should immediately separate himself from the other members in order that he might treat his acquisition as separate; & that failure to do so should necessarily lead to a presumption that the property would be a part of the joint family property. In the absence of any evidence of a positive Character to show that the acquirer intended that his acquisition should be treated as a part of the family stock, the presumption would be that it must remain his self-acquisition. It was neither alleged, nor attempted to be' proved, that Aohyutananda had manifested any intention to waive his separate rights to his self-acquire 1 property at any time. All the evidence, on the other hand, points to the contrary. The intention to benefit the family by spending the income accruing out of his self acquisition is quite different & distinguishable from an intention to transfer the property itself to the joint family. The trial Ct. presumed, from the absence of evidence pointing to separate dealings in regard to the self acquired property, Achyutananda's self acquisitions bad been blended with the ancestral properties, In taking this view he appears to have fallen into an error. There is no such presumption in law & it is always a question of fact-to be determined by evidence-whether Aohyutananda did, in fact, surrender his self-acquired properties for being merged with the common family stock. In my opinion the learned Dist. J. took the correct view of the position. He found from the recitals in Exs. C, D & E followed by mutation of names in accordance with the dispositions made in these documents that Aohyatananda did not waive his separate rights to the properties that he had purchased & that they remained, till the very end, his separate properties. Exhibit C is a deed of endowment, executed by Achyutananda & his wife in 1909 dedicating some properties in favour of two deities Radhamohan & Patitapaban, installed by them. The deed recites that on the death of the donors their youngest son, Nrusingho, should be the marfatdar of the said deities. This was followed up by an appln. by Aohyutatianda for registration of his name in respect of these properties as maifatdar, in the year 1910. Exhibit D is a registered will executed by Achyutananda in 1926 disposing of his separata properties in favour of Bhagat Oharan, Nrusingho Charan & Sachchid'inanda. In 1917 Aohyutananda got himself registered as the guardian of Bhagat (who was then a minor) in respect of the properties given to him in accordance with the will. Similarly, he got Nrusingho's name registered in respect of the properties given to him in accordance with the will. Exhibit E is a deed of settlement executed by Indramoni, mother of Bhagat, under which Bhagat was to receive a share of 8 annas 6 pies while Nrusingho was to receive the remaining 7 annas 6 pies, of the properties settled by the deed. On the death of Aehyutananda, Bhagat Charan applied as guardian of Nrusingho for registration of Nrusingho's name as marfatdac in respect of the deities. On the very same day he applied foe registration of his own name in respect of some other properties which had devolved on him. These applns. are marked as Exs. A to A 10 of the years 1910 to 1921. The learned Dist. J. was, therefore right in drawing an inference from these documents that the severance of status was effected by Aehyutananda himself during his life time & that it was followed up by Bhagat Charan on the death of Achyutaoanda. The properties were never in fact divided by metes & bounds & the management was all the time in the hands of Bhagat. It is also obvious that though the bulk of the properties had been separately recorded in the names of the two brothers some of the properties had been promiscuously registered at the last settlement. It is, however, clear that the agents who were actually in charge of the management of the properties were appointed by both the brothers by a joint power of attorney, Ex. J, which was executed in the year 1927 jointly by both the brothers. Furthermore, in Ex. K, which is a copy of a deposition made by Bhagat Charan in 1929, when he was examined as a witness in a suit brought by Nrusingho Charan, Bhagat stated as follows: 'I am the uterine brother of the pltf. (Nrusingho Charan). I am separate in mess & property since 1916.' It should be noted that both the will & the deed of settlement referred to above were executed in the year 1916. Bhagat also said 'I look after the joint property for the pltf. & myself. Plaintiff (Nrusingho) is not Ismali tenant.' These facts constitute clear evidence of the separate status of the brothers. Their shares had been defined & were being managed on behalf of Nruaingho by Bhagat. The lower appellate Ct. was, therefore, justified in holding that there was no coparcenary between Bbagat & Nrusingho-a fact which goes against the case set up by the pltfs.

23. It now remains to consider the only other question of fact, regarding the adoption, on which the Cts. below have recorded concurrent findings. It is necessary to state here that functions of a second appellate Ct. are limited & we would be slow to interfere with a finding of fact, even if we were inclined to take a different view from the Cts. below. But after hearing counsel who have taken considerable pains to place the evidence before us, I am satisfied that if I were to discuss the evidence independently I would have come to the same conclusion as the learned Dist. J. has done.

24. A curious feature of the case is that every single fact having some bearing on the question of adoption is contested & rival versions are given by the both parties. To improbabilise the adoption pltfs. sought to establish (1) that Nrusingho Charan himself was not present at the time & at the place where the adoption is alleged to have taken place (2) that Bhagat Charan was not present at that time, (3) that Sri Lakshmidhar Mohanty was away at Purl at that time, (4) that the adoptee himself was not present at the time & that Nruaingho Charan's wife was then enceinte. Except the second point which was aigued before us with some zeal the others were very properly passed over by learned counsel for the applti. The learned Dist. J. has referred to the evidence of p. we. 16 & p. w. 40 & agreeing with the trial Ct. declined to place any reliance on their statement that Nrusingho Charan was then at the house of Nabakrushna Choudhury. The evidence of p. ws. 89 & 33 to the effect that Lakshmidhar Babu was at Purl at the time is fan too clumsy & artificial to he believed & the remark of the learned Diet. J. that these two witnesses are unreliable appears to be justified. A few other circumstances suggesting the improbability of the adoption were brought to our attention ,such for instance the suggestion that Nruairgbo Charan being an England-returned ma would not think of adopting, but these are too trivial in nature to deserve notice. Nor would the disparity in age between the adoptee & his sister Pramila affect a decision on the issue of adoption one way or the other. [After discussing evidence his Lordship proceeded:

25. On the whole the evidence appears to show that from 1-8-1934, that is six days after the death of Nrusingho, Gyanendranath bad been described as the adopted son of Nrusingho by Bhagat himself & that in numerous documents Gyanendranath's right to succeed to the properties of Nrusingho has been admitted and enforced by Bhagat himself. These admissions may not by themselves be enough to support the allegation of adoption if, in fact, there was no other evidence of such adoption. But, as the learned Dist. J. has rightly pointed out, these admissions, coupled with the subsequent conduct of the parties & the direct evidence of witnesses examined by the deft, undoubtedly support the case of adoption. The learned Judge has made the correct approach to the question in attaching no greater importance to the admissions than as probabilising the statements made by the witnesses on oath & not as creating an estoppel against Bhagat.

26. It is well established that what a party' himself admits to be true may reasonably be presumed to be , Slatterie v. Pooley, (1840) 6 M. & W. 664: (10 I. J. EX. 8). In Chandra Kunwar v. Narput Singh, 34 I. A. 27. (29 ALL. 184 P. C.), the Judicial Committee had to deal with the admission made by pltfa. in some deeds to which the defendant was not a party. Their Lordships observed that the party making the admission may give evidence to rebut this presumption & that there was no estoppel but unless & until that is done the fact admitted must be taken to be established. It is well settled that the express admissions of a party to the suit or admissions implied from his conduct are evidence - indeed strong evidence against him unless he can prove that such admissions were mistaken or were untrue & he is not estopped or concluded by them unless another person has been induced by them to alter his condition. In the written statement filed by Bhagat as deft. 2 be alleged that the father of deft. 1 (Gyanendarnaih), viz., Lakshidhar Babu, proposed to him two days after Nrusingho's death to set apart a portion of his properties for the maintenance of his widow & the daughter of Nrusingho, to relieve himself of the burden of maintaining & looking after them for all time to come, & that in. a very weak moment Bhagat agreed to the same. It is further averred that sometime later Lakshmidhar Babu approached Bhagat again with a further proposal that deft. 1 should be treated as the adopted son of Nrueingho as he would be of help to Bhagat & a good substitute for Nrusingho. When this second proposal was made is not clear from the evidence. But so far as the first proposal is concerned there is a difference between the version given about it by Bhagat in his written statement & the version given about it by him in the witness box. What Bhagat said in his evidence as P. w. 42 was:

'On the 27th July she was sent to our house. I wag sent for by Lakshmidhar Babu. He then enquired what property I would give to the widow, I agreed to give some property for her maintenance. Lakshraidhar'a wife proposed that I should give some property to Mantu (Gyanendra) as the son of Nruaingho. Iiakshmidar Babu said that Gyanendranath would help me in many ways. Ultimately I agreed as Bijay ram said that there might be litigation.'

This shows that Lakshmidhar Babu's wife proposed on the 27th of July that Gyanendranath should be taken as the adopted son of Nrusingho & that Bhagat agreed to the same. The case as set out in Bhagat'a written statement that deft. 1's father 'again approached this deft, with a further proposal that insted of setting apart a portion of the property for the maintenance of his sister-in-law it could be more to the satisfaction & consolation of his sister-in-law that her brother, deft. 1, should be treated as her adopted son,' has been altogether abandoned. I am not satisfied that this point which was argued with great vigour has been established. It is difficult to believe that Bhaghat Charan was not depressed by the death of his brother or that he had developed such softness of mind that he readily agreed to pact with his property & introduce Gyanedranath as the adopted son of Nrusingho merely on a suggestion from Lakshinidhar Babu to do so. It seems to me that Bhagat Churan had to resort to this plea as no other was conceivable, in order to get out of the numerous admissions made by him in the various documents almost from the moment of Nrusingho's death. It was argued that Bhagat executed the partition deed at the instance of Lakshmidhar Babu who was anxious to obtain an admission from Bhagat about the status of deft. 1, & that consequently it must be held void & no reliance would be placed upon it. Even if the partition deed were to be ruled out of the evidence there is a mass of equally reliable document's case. The onus was upon the pltf.-appt. & they have failed to discharge it by showing that the admissions were made either through a mistake or under the influence of fraud practised upon Bhagat. In the absence of such evidence the pltf's. ease must fail. When an applt. comes to Ct. to set aside an adoption on the foot of which there is a partition, the obligation lies on him to be constitute his suit as to enable the Ct. to deal with the whole subject-matter & dispose of all the rights & interests of the parties to the deed. But in this case the suit is expressly so constituted that no relief is asked for to get rid of the partition deed under which Gyanendranath is given a share in the family, property. That is so because of the fact that Bhagat was anxious to cut off Gyanendranath with only the limited amount of property allotted to him under the deed of partition. His attitude is at least equivocal & I have not been able to make out how he can seek to set aside the adoption without also repudiating the deed of partition.

27. On the whole I am convinced that the case set up by the deft, has been established & that the findings of the Ct, below have been correctly arrived at. The appeal fails & is dismissed with costs throughout.

Jagannadhadas, J.

28. I have had the advantage of reading the judgment of my learned brother with whose conclusions I agree.

29. The only question in this case on the. merits is as to whether the alleged adoption of the deft. Gyanendra by Nrusingho Oharan, the brother of pltf. s has been satisfactorily established. Both the trial Ct. & the lower appellate Ct. after remand have concurrently found that it has been so established. It would require exceptional reasons for a second appellate Cs not to accept that concurrent finding. It is true that the onus is heavy against the person setting up an adoption especially when there is no contemporaneous deed of adoption, as in this case. But both the Cts. below have considered the case fairly in all its aspects keeping this onus in view & we are unable to find that any material evidence or circumstances have been omitted to be considered or that the Cts. below have come to the conclusion adopting any perverse reasoning. In view, however, of the very strenuous arguments by the learned counsel for the applt. suggesting that there were lacuna in the judgments which entitled a second appellate Gt. to interfere, we have heard the appeal for a number of days virtually as a first appeal on the evidence. I agree with my learned brother in thinking that even on the footing of this being a first appeal we should have found no reason for coming to any conclusion other than what has been arrived at by the Cts. below. Since my learned brother has dealt with the merits of this question fully it is not necessary that I should cover the same grounds. I shall content myself with indicating broadly the lines on which we have considered the matter & come to our conclusion. The decision ultimately turns upon the choice between two sets of witnesses & the weight to be attached to certain alleged admissions ether side based on their respective documents. Learned Counsel for the applt. has very strenuously urged that the decision h*s to be reached mainly, if not solely, on a consideration of the oral evidence & its intrinsic reliability or otherwise & should not be deflected by a consideration of the allege! admissions in favour of the adoption. I cannot agree with this contention. In a case of this kind, it is legitimate to accept oral 'evidence, on a consideration of the documentary evidence & the probabilities, unless such oral evidence is intrinsically unreliable & worthless. That is the approach to the assessment of evidence of adoption in a similar case by the P. C in Arjuno Naiko v. Modono Mohono, A. I. R.(27) 1940 P. C. 158 at pp. 154, 155: (I. L. R. (1940) Kar. P. C. 349).

30. On the pltf's Bide have been exhibited various applns, Exs. 1, 2 & 3 series in which it does appear that the deft, after the date of the alleged adoption, did not describe himself as the son of his adoptive father, but as the son of his natural father. He has given some reasonable explanation for this which the Cts. below have accepted. As against this the deft, relies upon a whole series of documents to which pltf. 2 or his agents are parties starting from within a week of death of Nrusingho Charan & continuing right up to the date when the suit was filed & also for some short time thereafter. These documents contain unequivocal admissions by pltf 2 relating to the adoption of the deft & furnish also evidence regarding the conduct of himself & his agents during that period on that footing. Of these admissions, the most important are a joint power of attorney Ex. J. executed by Bhagat Chatan & Gyanendra on 1-8-1934 (Nrusingho charan having died on 25-7-1934) & Ex. 00, a partition deed executed on 28-5-1935 jointly by the second pltf. & the deft. The various documents have been noticed by the learned Dist. J. Sri Coari in his judgment at pp. 62 & 61 of the paper book There can be no doubt that if the admissions of pltf. 2 contained in & his conduct evidenced by, these dooumants are to be given their full weight, the pltfs. have an extremely up hill task. It has not been suggested that these admissions & conduct of pltf. 2 cannot be used us against pltf. 1 also. It appears likely, that feeling the weight & fores of this documentary evidence the suit was filed in She first instance only by pltf. 1 making pltf. 2 a party deft; & it was -alleged in the plaint that pltf. 1 was born in April 1935, just prior to the deed of partition Ex. CC in order that an argument may be advanced that the admissions of pltf. 2 in Ex. CC. do not bind pltf. 1 who had an independent; right by birth in the family property already by then. But it has been almost conclusively shown by the evidence, as in fact, was found by the Cts. below that pltf. 1 was born in 1936. But even if it were otherwise, the admissions made by the father in the power of attorney Ex. 3. & the partition deed Ex. 00. would be dearly admissible as against pltf. 1 the father being the representative in interest of the son in dealing with ancestral property.

31. In order, therefore, to get over the weight & effect of these admissions & conduct the substantial explanation which has been attempted on behalf of the pltfs. is that these admissions were the result of an arrangement entered into between pltf. a & the natural father of deft. 1 Lakshmidhar Mohanty, within two days after the death of Nrusingho Charan where by was arranged that in order to give solace to the bereaved widow of Nrusingho Charan deft. 1 was to be treated as her adopted son though not in fact adopted & that he should be given the property which pltf. 2 out of his generosity & consideration for her would probably have given to her by way of a liberal maintenance in any case, & that the sentimental depression of pltf. 2 on the death of his only brother & on the consequent deplorable condition of his brother's widow was exploited to the full by the shrewd & wordly-wise Lakshmidhar Mohanty. (See para 14 of deft's 2 written statement). Not only is this case somewhat at variance with the case of fraud in execution & registration of Ex. C.C. put forward by pltf 2, then deft. 2, in his written statement, para I7 filed on 6-5.39 after he had the advantage of seeing the written statement of deft. 1 filed on 22-1-39, but we are satisfied that there is nothing at all in the evidence & the probabilities to substantiate this explanation. We are satisfied that neither is pltf. 2 so gullible nor is the natural father of deft 1 proved on the evidence to be of such a scheming nature as to probabilities the truth of any such explanation. Further whatever may be said if the partition dead Ex. C.C. stood alone, it is almost incomprehensible how the joint power of attorney containing un. equivocal admission about adoption came to be executed within a week of Nrusingho Chiran'a death & how various other steps were taken on the footing of deft. 1's adoption long before the partition deed, Ex. CO was executed & without any written evidence or acknowledgment at that time of the alleged anangemant said to have been partially or fraudulently embodied later in Ex. 00. We have attempted to scrutinise whether there is anything in the manner in which the properties have been divided under the partition deed, Ex. co, having regard to the probable values of the respective allotments & the preexisting state of the apparent title indicated by Exa. C, D, & B, as between the two brothers Bhagat Oharan & Nrusingho Charan in respect of the various items comprised in the two allotments, to throw light as to the probable springs of action of either side -when entering info this partition deed, Ex. cc & to see whether the explanation now put forward by pltf. 2 is reasonably likely. Without any elaboration of this aspect, it is sufficient to say that this line of approach gave us nothing which would probabilise the pltf's. explanation, but if any, it would confirm the case as to circumstances under which according to the delt. the partition deed came into existence.

32. Learned counsel for the applt. has taken as through a good deal of correspondence relating to a period subsequent to the death of Nrusingho Charan to substantiate the probability & truth of the explanation put forward on the pltf's side for the admissions & conduct of pltf. 2 above noticed. He has also referred us to some correspondence at about the time of the alleged adoption to show that the adoption must be untrue as a fact. Learned counsel for the resp. be also in his turn invited our attention to a number of other letters which according to him support his case. All these letters have been merely marked as exhibits without objection, but the contents thereof have in most cases not been put to the persons connected with them when they were in the box, either in their chief examination or cross-examination. It appears to me, therefore, that it is not permissible to use the Contents of such letters as proving the statements therein made & to make use of the statements made therein for the purpose of drawing inferences one way or the other with reference to the disputed questions arising in the case. I would, therefore, keep out of consideration the use of those letters on either side for the purposes for which they were sought to be used. But even if we were prepared to attach any value to them, & take them into consideration, one cannot help feeling that there is more in them in favour of the deft's. case, Here again, I need not enter into the details. It is enough to notice Ex. B-25, dated 25-4-37 containing instructions from Bhagat to his clerk Bhajaram to make use of Ex. CC the partition deed for getting his name registered as the sole owner in respect of 4 touzis on the strength of the said Ex. CC quickly & quietly & with special instructions to tear away the letter.

33. I am, therefore, definitely of the view that the admissions & the conduct of pltf. 2 relating to the adoption remain without any satisfactory .explanation & must tell heavily against the case of the pltfs. Of course, it is clear that mere admissions & conduct cannot create the Status of adoption, but if the Cts. below, in viewing the positive evidence for & against the adoption, have accepted the evidence of witnesses in favour of the adoption & that is also fully corroborated by the later admission & conduct of the most interested person pltf. it is obvious that there can be no reason for not accepting the findings of the Cts. 'below. Learned counsel for the applts. has taken us through the entire oral evidence for both sides & has made his comments on the credibility or otherwise of the witnesses & has attempted to argue that the oral evidence on the pltf's side has been rejected, & on the deft's. side accepted by the Cts. below for untenable reasons. He has also pointed out that almost all the witnesses that speak to the positive case of deft. 1 as regards the factum of adoption are either persons who are in some way under the influence of deft. 1's father or persona who may be called chance witnesses, & who are said to have been there casually without any kind of previous intimation or invitation. These circumstances, however, are not by themselves sufficient reasons for rejecting the evidence of the witnesses, especially having regard to the fact that Nrusingho Charan was at the time in a condition of health which resulted in his death a few days thereafter & which may account for absence of publicity or of a formal deed of adoption. Apart from the fact that the evidence of these witnesses has been accepted by the trial Ct. which saw them & also by the appellate Ct. on remand, I have been impressed, speaking for myself, with the evidence of Rai Sahib Gopal Chandra Patna k & Adasi Somasekhanc, D. ws. 9 & 5 respectively on a perusal of their deposit one. The evidence of P. w. 80, the widow of Nrusingho Charan is also particularly impressive & there is no reason suggested why she would have come forward to support the adoption, though of her own brother, depriving herself of the right to succeed to property of her husband & of the right to pass it on to her daughter & later to her prospective daughter's sons. It is necessary to remember in this connection, as has been found by the lower appellate Ct. that her husband Nrusingho Cbaran wag separated from pltf 2. It has bean suggested that having regard to the admitted fact of jointness in mess between Bhagat Charan & her husband he may not have been aware of their separation in status. But it is unlikely that neither she nor her father who was a lawyer, were unaware of the legal status of Nrusiugho Charan & were altogether unacquainted with the existence of documents like Exs. O, D, E, A series & J series, which show that the properties were held in separate title. I am therefore, satisfied that the adoption of deft. 1 by the late Nrusingho Charan is amply borne out by the evidence & the probabilities & that the concurrent finding in the Cts. below in this behalf must be confirmed.

34. A question has also been raised in this suit as to whether pltf. 2 & Nrusingho Charan were separated or joint in status. This question arises only incidentally in this litigation as having a bearing on the maintainability of the suit by pltf. 1 alone, as it was originally constituted, & as having also a bearing on the probability or otherwise of the factum of adoption & the truth or otherwise of some aspects of the evidence relating thereto. It is enough to say that I agree with the finding of the lower appellate Ct. after remand on this point. The finding to the contrary by the trial Cfc is clearly vitiated by its wrong assumption that because Achutatianda had two acres of ancestral property, all his subsequent earnings must be presumed to have been thrown into the common stock & enjoyed jointly by all the members of the family, The documents, Exs. C, D, & B, A decries & j series furnish clear & unequivocal evidence of the fact that the properties were being held by the two brothers Bhagat & Nrusingho as separate. The argument that documents were all nominal has no substance & no merit. I agree, therefore, that Bhagat & Nrusingho were separate in status.

35. On the merits of the second appeal the judgment of the learned Dist. J. on appeal has therefore to be affirmed.

36. There remains the point relating to the validity of the hearing of the appeal by Sri Coari as Dist. J.

37. At the hearing of this appeal, a question was raised, at the outset, on behalf of the applf. based on Section 38 (2), Bengal, Agra & Assam Civil Courts Act of 1887 (which is in force in this province). The point involved does not appear to be covered by any direct authority & requires careful consideration.

38. The facts giving rise to the point have been set out in the judgment of my learned brother & it is unnecessary to reiterate them. The judgment of the trial Ct. in this case was prepared by the then Addl. subordinate Judge Sri Gopal Chandra De, but was actually pronounced by the principal subordinate Judge Sri CC. Coari on 9-8-40. The appeal against that judgment lay to the Dist. Ct.. & by the time it came up for hearing, on remand by the H. C. the same Sri Coari was the Dist. J. He heard the appeal, without any objection, & disposed of the same by his judgment dated 10-8 47. The present second appeal is against that judgment. The point raised is that Sri Coari was incompetent to hear the appeal & that his judgment is a nullity, by virtue of Schedule 8, Bengal, Agra & Assam Civil Courts Act of 1887 which is in the following terms:

'The presiding officer of an appellate Civil Ct. under this Act shall not try an appeal against the decree or order passed by himself in another capacity.'

It is argued that the decree in the suit was passed by Sri Coari & that therefore he was prohibited from hearing the appeal. In this case not only was the judgment pronounced by Sri Coari on 9-8-40, but the decree that was thereafter prepared was in fact also signed by Sri Coari on 22-8-40. The decision of the point raised depends on the question whether Sri Coari can be said to be 'the Judge who passed the decree in the suit' within the meaning of the above provision of the Civil Courts Act. There is no indication in that Act itself as to what is meant by 'the Judge who passed the decree'. If one turns to the scheme of the Civil P. C. the provisions therein clearly indicate that in an ordinary ease where a judgment has been reserved after hearing, there are three stages : (l) the writing of the judgment; (2) the pronouncement of the judgment followed by dating & signing & (3) the preparation & the signing of the decree. . It is conceded in argument that the mere preparation & signing of the decree under the provisions of Order 20, Rule 6, 7, & 8 do not constitute 'the passing of the decree. '. This is also clear from the fact that various provisions of the Code show that the rights & obligations under a decree arise not from the date when the decree is drafied & signed but from the very moment that the judgment is pronounced. This has been pointed out in the judgment in Ramchandra v. Bhalu Patnaik, I. L. R. 1950 cut. 253 at pp. 270 & 271 : (A. I. R. (37) 1950 Ori. 125, F. B.). It is also indisputable that the mere writing of the judgment does not constitute the passing of the decree, though in fact it has been later on pronounced. Order 20, R. 3 shows that a judgment becomes final & unalterable only when it is pronounced & not before it, & 0. SO, R.. 7 shows that the judgment becomes operative only from the date of the pronouncement. There can, therefore, be no doubt that a decree cannot be said to have been, passed before the judgment has been pronounced. According to Section 83, C. P. C. the Ct. after the case has been heard, shall pronounce the judgment & on such pronouncement a decree shall follow. This provision as well as the provision under Order 20, Rule 7 clearly indicate that the judgment & the decree are simultaneous. Therefore in one sense a decree is passed when the judgment is pronounced, especially where the judgment contains not merely the grounds of the decision, but the formal expression of the adjudication inclusive of the reliefs granted See Ramohandra v. Bhalu Patnaik, I. L. R. (1950) Cut. 253 at p. 271: (A. I. R. (37) 1950 Ori 125 F.B.). It appears, therefore, clear that the Judge who pronounced the judgment also 'passes the decree' at the same time according to the scheme of the Civil P. 0. & in that sense he is the Judge who passes the decree, & especially for purposes of Section 38 (2), Civil Courts Act. Under the Civil P. C, the Judge may pronounce a judgment prepared by himself under Order 20, Rule 1 or by a predecessor under Order 20, Rule 2 It is not very clear at the outset that even for purposes of Civil P. Cc., in the latter case, he is to be treated as the Judge who passed the decree for all purposes. For instance, under Order 47, Rules 1 & 2, an appln. for review of judgment is to be made to the Ct.. which passed the decree, but where the appln. is on a ground other than discovery of new & important matter, or an error apparent on the face of the decree, the appln. is to be made only to the Judge who passed the decree & it can not be heard by any succeeding Judge unless he issues notice on it. It is clear that the object of this provision is that the prima foots decision as to whether the judgment requires reconsideration on merits is left to the very Judge who had previously applied his mind & given his decision, just as for instance leave to appeal against the judgment of a single Judge in the H. C can be given only by that very Judge. Having regard to the intention & purposes of this provision, the phrase 'the Judge who passed the decree' in Order 47, Rule 8, has been construed in Tamijuddin v. Salyashanher, A.I B. (4) 1917 Cal 673: (32 I. c. lot), as referring to the Judge who delivered the judgment & thereby expressed what the decree is & is responsible for its substance & not merely to the judge who formally signed the decree.

39. In construing, therefore, what is indicated by the phrase 'Judge who passed the decree' in Schedule 8 (a), Civil Courts Act, it appears to me to be equally permissible to consider what is the intention & object of the provision. That intention & object is one that is unmistakably gathered from Section 38 itself. Sub-section (l) of Section 38 provides that:

'the presiding officer of a civil Ct. shall not try any suit or other proceeding to which he is a party or in which he is personally interested.'

Sub-section (2) provides that:

'the presiding officer of an appellate civil Ct. shall not try an appeal against a decree order passed by himself in another capacity.

Sub-section (i) apparently is intended to provide against the judgment of Ct. being perverted by the personal interest of the judicial officer. Subs. (2) is meant to provide a safeguard against the bias in favour of his own previous judgment operating to deflect the right decision on appeal. If the phrase 'the judge who passed the decree' is to be taken to mean 'the Judge who pronounced the judgment' irrespective of whether he prepared the judgment or not, the prohibition would apply to a person who performed the mere mechanical & official act of pronouncing the judgment prepared by another, but would exclude the very person who had prepared the judgment, but not pronounced it, if per chance he happens to have become later the presiding officer of the appellate Ct. before whom the appeal comes up for hearing. It would be unreasonable to construe the phrase the 'Judge who passed the decree' so as to produce these anomalous result?. The phrase 'the judge who passed the decree' in Schedule 8, Sub-section (2), should, therefore, I think be construed as applicable only to the Judge who prepares the judgment & in the normal course pronounce it & thereby passes decree & not to the judge who merely pronounces the judgment under the provisions of Order 20, Rule 2, without haying himself prepared it. That, words oc phrases in a Statute having larger import can, having regard to the purpose & object intended, be understood in a limited Sense, is a well-known rale of construction. See Macleod v. Attorney-General, 1891 A. C. 455: (60 L. J. P. C. 55) That this limitation is reason. able is confirmed by a consideration of the history of the provision in the Civil P. 0. relating to the power of a successor Judge to pronounce the judgment of a predecessor. That provision was not to be found in the Civil P. C. of 1859, but was first introduced in the Civil Procedure Codes of 1877 & 1832 as Schedule 99 thereof & repeated in 1909 Civil P. C. as Order 20 Rule 2. So far as the civil Courts Act is concerned, it is to be noticed that the provision prohibiting a-Judge to hear an appeal against a decree passed by himself in another capacity, was one that ; was enacted prior to the introduction in the Civil P. C of the provision authorising a successor to pronounce a predecessor's judgment. The present Bengal, Agra & Assam Civil Courts Act of 1887 which is a Central Act, was preceded by the Bengal Civil Courts Act (Act IV [6] of 1871) which was also a Central Act. Corresponding to Sub-section (2) of Schedule 8 of the present Act, there was in the prior Act, the following provision in Schedule 3 (2) thereof: 'No subordinate Judge, Addl. Judge or Dist. J., shall try any appeal against a decree or order passed by himself in another capacity.' It is interesting to note that there is a similar provision in 8, 17, Madras Civil Courts Act of 1873, which is also a Central Act. It cannot be doubted that the phrase 'passing the decree' in these Central civil Courts Act of that date, must be construed with reference to the procedure authorised by the then Civil P. C. of 1859 & must therefore refer to the Judge who having prepared the judgment pronounced it himself. It appears to me, therefore, permissible to construe the same phrase in the Civil Courts Act of 1887 in the game way, unless it can be said that the Civil P.C. of 1877 & 188S by enacting Schedule 99 deliberately intended to bring about or necessarily brought about, a change in the meaning of the phrase 'Judge who passed a decree.'

40. The question then is whether the provision in the later Civil Procedure Codes of 1877 & 1892 authorising a successor Judge to pronounce the judgment of a predecessor Judge, renders the judgment & the decree so pronounced that of the pronouncing Judge. The principle underlying this provision has been fully explained in a very (sis) case in Parbati v. Higgin, 17 W. R. 475, the judgment in which is dated 8 4.18T2, before Section 199, C. P. C. of 1877 was enacted. That judgment recognised the validity of the practice which probably had grown up by that time & which received legislative recognition later in 1877. In that judgment Jackson J. says as follows:

'Than as to the other question, it appears to me that there is really nothing in it. Babu Bolak Chand, when he heard the suit, apparently when he made up his mind as to the judgment which he would give, was actually subordinate Judge of the District & the circumstance that he had no time to write out as required by the Code the judgment which has to be delivered in Ct. before he was relieved in his office, does not, I think, affect the validity of that judgment. Ha heard & to all intents & purposes determined the suit & gave judgment; but his tenure of that particular judicial office having expired before judgment could be pronounced, that judgment which the judgment of the Judge who heard the case, was pronounced HI a matter of form his successor In open Ct, That judgment therefore appears to me unimpeachable on any such ground.'

This passage explains very clearly the theory underlying the provision in Schedule 99, C. P. C. of 1877 & 1882 & the corresponding provision in Order 20, Rule 2 of the present Civil P. C. That theory, it seems to me, is that the successor Judge pronounces the judgment of the predecessor Judge as his statutory proxy, & the judgment so pronounced is 'to all intents & purposes the determination of the predecessor Judge'. It is, therefore, as though the pronouncing of the judgment, which undoubtedly constitutes the passing of the decree is to be taken in law to be the pronouncement by the pre-decessor Judge. If this is the correct the correct view of the legal effect of Order 20, Rule 2, the connotation of the phrase 'the Judge who passed the decree' in the civil Courts Act, need not be taken to have undergone any change after 1877. But it still continues to mean as it originally did in 1877. The Judge, who having heard the suit & prepared the judgment, pronounces the judgment & thereby passes the decree; pronouncement by the successor in any case where it become necessary being tantamount to pronouncement by the predecessor himself. I venture to submit that this construction of the relevant phrase in Schedule 8 (a) does no violence to the language & avoids the anomaly, already pointed out arising from equating ''passing of the decree' to a 'mere mechanical pronouncement of the judgment.'

41. The only serious objection to this construction is the view pressed by learned counsel for the applt. relying on certain authorities that under Order 20, Rule 2, the successor Judge has the discretion either to pronounce or not to pronounce the judgment of the predecessor Judge. It is argued th if the statutory provision gives the discretion, the judgment pronounced in exercise of the discretion must be taken to be the judgment of the successor Judge by his adopting it is, therefore, suggested that the theory underlying Order 20, Rule 2 is to be taken to be not that the pronouncement by the successor is to be treated as the pronouncement by the predecessor; but that the judgment of the predecessor is to be treated as the judgment of the successor, if he chooses to pronounce . That Order 20, Rule 2 gives a discretion is maintained on the authority of the case in Lachman Prasad v. Ram Kishan, 33 ALL. 236 : (8 I. C. 1096), Fort Gloster Jute Mfg. Co. v. Chandra Kumar, 46 cal. 978 : (A. I. R. (7) 1920 cal. 597) & Hargulal v. Abdul Gani, A. I. R. (23) 1936 Rang. 147 : (14 Rang. 136 F. B.). Out of these oases it may be noticed that the pronouncamenta in Fort Gloster Jute Mfg. Co. v. Chandra Kumar, 46 cal. 978 : (A. I. R. (7) 1920 cal. 597) & Hargulal v. Abdul Gani, A. I. R. (23) 1936 Rang. 147 : (14 Rang, 136 F. B), are obiter. The only case which specifically decides that the word 'may in Order 20, Rule 2 is to be construed as involving a discretion is the case in Lachman Prasad v. Ram Kishan, 33 ALL. 236 : (8 I. C. 1096). I venture to doubt the correctness of the view, that the word may' in Order 20, Rule 2 is to be construed as involving a discretion. Such a construction fails to take note of the fact that the Code provides no indication to guide the exercise of the discretion, which if it exists, must be judicial discretion & not arbitrary caprice. It is to be noticed that Order 20, Rule 2 while it authorise s the pronouncement of the judgment, does not authorise the reconsideration thereof by the successor & it would not be reasonable to construe it as giving, by implication, a power to the successor, virtually by way of an appeal or review. It is no doubt true that the word ' may ' in a statute does not necessarily mean 'must' as pointed out in Julius v. Bishop of Oxford, (1860) 5 A. C. 214 : (49 L. J. Q. B. 577). But as pointed out in In re Baker, Nichols v. Baker, (1890) 44 ch. D. 262 : (59 L. J. ch 661), there is always another question also to be decided in construing the word 'may' namely, whether there is anything in the Statute which makes it the duty of the person on whom the' power is conferred to exercise that power, Cases have held that where a statutory provision confers an an authority to do a judicial act in a certain case, id is imperative on those who are authorised to exercise that authority, when the case arises, & the exercise depends not on the discretion of the Cts. or Judges, but on the proof of the particular case out of which the power arises. See Maxwell on Interpretation of Statutes, 9th Edn., p. 2S0; also, Queen v. Tithe Comrs. (1830) 117 E. R. 179 : (14 Q. B. 459) & Macdougall v. Paterson, (1851) 138 E. R. 672 : (11 C. B 755). It appears to me therefore that the word ''may in Order 20, Rule 2 must be construed not a involving a discretion, but as conferring an authority which it is the duty of the successor to exercise, if there is on record a prepared & signed judgment of his predecessor , who heard the suit. To say that the successor has the discretion not to pronounce it, is to deprive the parties concerned, off the benefit of the trial itself or at least of the impressions & opinions formed by the Judge, who actually tried the case & saw the witnesses. It appears to me not to be right to imply from a mere authority given to pronounce a predecessor's judgment, a power also to ignore the same or to sit virtually in appeal against that judgment. I venture therefore to submit, with all respect, that as at present advised, I do not agree with the view that Order 20, Rule 2, involve a discretion. But I do not wish to express my final opinion on the question since it h's not been fully argued on either side before us in all its bearings.

42. Even, however, if the rulings laying down: that the word 'may' in Order 20, Rule 2 is to be construed as involving a discretion, are to be held as authoritative & laying down the correct law. there is no reason to import into the construction of Order 20, Rule 2, a legal fiction in every case that a predecessor's judgment when pronounced by a successor, becomes his judgment. As already pointed out Order 20, Rule 2 does not enjoin reconsideration of the judgment by successor & the pronouncement therefore, might well be a mechanical act. When the therefore a successor by pronouncing a predecessor's judgment adopts it as his own, must depend on the facts of the situation. There is no reason, on the facts of this case, to import the motion that the judgment of Sri G. C. De which Sri Coari has pronounced, has been adopted by him as his own, & that therefore the decree must be taken to have been passed by him. The order, sheet of the suit clearly shows the prepared judgment of Sri G. G. De which was of considerable size was received from that Judge on 9-8-40 & on that very day notice was issued to the parties & the judgment was delivered by Sri C.C. Coari, vide, orders 126, 127 & 128. It is impossible that the learned Judge Sri Coari would have perused & considered the judgment of Sri G. C. De & accepted it as his own within so short a time. I am, therefore, clearly of the opinion that Sri Coari cannot be taken to be the Judge who passed the decree within the meaning of Section 88(2), Bengal. Agra & Assam Civil Courts Act of 1877, having regard to the construction thereof , which I have adopted above, & having regard to the view I take of Order 20, Rule 2 as operating in law to render the pronouncement by the successor as the pronouncement by the a predecessor.

43. A question might also well arise, whether even if there has been a violation of the prohibition in Section 38 (a), Bengal, Agra & Assam Civil Courts Act, the judgment is thereby rendered a nullity. It is not in every case where a statutory prohibition is disregarded that it results in a nullity. It is well settled that neither mere negative words nor peremptoriness of the language are by themselves conclusive. See Liverpool Borough Bank v. Turner, (1860) 45 E. R. 715 : (2 De G. F. & J. 502), Mayor of London v. R. (1848) 13 Q. B., 33, N. (d), Craies on Statute Law, p. 534, footnote (g). That must depend upon a careful consideration of the scope & purpose of the prohibition. The question in this case turns on whether the prohibition relates to the foundation of jurisdiction or relates only to the manner in which jurisdiction is to be exercised & also whether it is in the nature of a personal disqualification of the individual Judge in a particular case for benefit of the concerned litigant or is based on a larger & fundamental public policy. See Margate Fire Co. v. Hannam, (1819) 106 E.R. 661: (3 B. & Ald. 266), Gurdeo Singh v. Chandrikah, 5 C. L. J. 611 : (36 cal. 193) & Ashutosh v. Beharilal, 35 cal. 61: (6 C. L. J. 320 F. B.). It is relevant to note in this connection that in English law, a distinction is drawn between the pecuniary interest of the Judge & the prejudice or bias of the Judge. While the former is considered as an absolute bar, the latter does not appear to be treated as such & is considered as capable of being waived. See Venkatapathi v. Mahomed Sahib, 38 Mad. 531 : (A. I. R. (3) 1916 Mad. 587), & Halsbury'B Laws of England, II Edn. Vol. XXI, paras 952-953 at pp. 535-536). It is unnecessary, however, to pursue the matter & pronounce any final opinion in this matter also, since in my view, the present case is not hit by the prohibition in Schedule 8 (2), Civil Courts Act. It is, however, worthwhile noticing that in this case the order-sheet in the appeal before the Dist. Ct shows', that Sri Coari received the appeal on his file after remand on 3-8-45. He took up the hearing of the appeal On 28-1-47 more than six years after he pronounced the judgment. During the pendency of: the appeal before him for hearing for a period of about a year & half, before it wag taken up, not; only was no objection taken by the applt. for the hearing of the appeal by him, but the applt. himself had applied by petn. for adjournment of the appeal at least on four occasions. (See 0. Nos. 27, 81, 36 & 37).

44. Learned counsel for the applt. attempted to persuade a that there was likelihood of such bias in this ease & to substantiate it has relied on two? circumstances. He points out that Sri Coari as Subordinate Judge & when this suit was pending before him, in its early stages, had occasion to pass an order an order on an appln. to delete a certain issue (vide o. No. 28 dated 15 8 39) & also certain order on an appln. for appointment of receiver which however was ultimately not preserved. (Vide orders dated 2-3-40 & 21-3-40). There is nothing, however,, in these orders which indicates that he was called upon to apply his mind to the merits of the case & there is no scope for the suggestion of bias. It is only fair to say, having gone carefully through the judgment of Sri Coari now under appeal & having: given full opportunity to the counsel before us on either side on either side to argue the case almost as if it is a first appeal, that we have absolutely no reason to think that Sri Coar's judgment indicates any bias,. Nor is there any reason to think that the applt. has been in any way prejudiced. There is therefore no merit at all in the objection raised on behalf of the applt. based on Section 38 (3), Civil Courts Act.

45. In the result, therefore, I agree that the second appeal must be dismissed with costs.

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