1. This is an application for leave to appeal to the Supreme Court under Sections 109(c), 110 and Order XLV, Rule 3 of the Code of Civil Procedure.
2. The relationship of the parties will be clear from the following pedigree-table:
| | | |
Soma Daulu Karman Dharman
| | Diwana
Bhag Mal Lara |
| | Sidhu
Sudha Bagha |
| | Bhagwan=Mt. Kishno (deft. 1)
Maghi Sunder |
| ___|_____ Dr. Hardit Kaur (deft. 2)
Harnam Singh | |
Bishan Singh Ram Ditta
Pritam Singh (plaintiff).
3. Defendant No. 1, Kishno is the widow of Sardar Sahib Bhagwan Singh. She held the land, the house and the vacant site in dispute as the widow of Bhagwan Singh. On the 13th June 1946 she made a Will bequeathing the whole of her property in favour of her daughter Dr. Hardit Kaur, defendant No. 2, and then made a gift in her favour on the 23rd September, 1949. On the 29th November 1949, Bishan Singh and others collaterals of the fifth degree brought a suit to challenge the alienations alleging that the property in dispute is ancestral qua them, and that under custom Mt. Kishno could not make a Will or gift in favour of her daughter, defendant No. 2. They ask-ed for a declaration that these alienations will not affect their reversionary rights.
4. The defence was that the property in dispute was not ancestral qua the plaintiffs, that the gift amounted to acceleration of succession, and that the Will was binding on the plaintiffs.
5. The trial Court held that the land in dispute was not ancestral qua the plaintiffs. In coming to this conclusion the learned Judge referred to the Excerpt, Exh. P. W. 1/1, to the copies of the pedigree-table and the 'Kaifiyat Dehi', Exs. P. I and P. 2, and to the copies of the settlement records of 1882, Exs. P. 3, P. 5 and P. 6. The learned Judge in his judgment referred to all the details given in the pedigree-table and the 'Kaiflyat Dehi' (History of the foundation of the village), and after considering all this evidence and the law applicable, held the land in suit to be non-ancestral. Under issue No. 2 he remarked that it was conceded by the plaintiffs that if the property in suit was non-ancestral defendant No. 2 was a preferential heir as against the plaintiffs and therefore the alienation in favour of Dr. Hardit Kaur could not be successfully challenged by the plaintiffs. The suit was therefore dismissed.
6. An appeal was then taken to the Court of the District Judge, who held that the land was non-ancestral. He also referred in his judgment to the Excerpt, Ex. P. W. 1/1, to the pedigree-table and the 'Kaifiyat Patti' and 'Zikar Hasul Maliat', and has given a gist of this document in his judgment, and from this document he refused to draw the inference that the land descended according to the rules of inheritance. He stated:
'The note in the 'Kaifiyat Patti' by itself, particularly when it includes the history of several members of that family having died childless and having absconded, cannot be taken as a presumptive proof that the landhas throughout descended by the accepted rule of inheritance.'
He also held that Exhibit P. 1 which referred to the Settlement of 1882 did not indicate clearly as to what happened to the shares of Karman and Dharman. It may also be remarked that in 1852 the land was held by Diwana son of Daulu and yucha and Bagha grandsons of Soma. Taking all these facts into consideration the learned Judge refused to draw the inference that the land was ancestral.
7. Besides the question of the ancestral nature of the property, another point was argued before the learned Judge and that was the 'locus standi' of the plaintiffs to bring the suit because they were collaterals beyond the fourth degree. Relying on the 'riwaj-i-am' of the District and a judgment of Lahore High Court in Harnam Kaur v. Jagat Singh', AIR (23) 1936 Lah 108, the learned Judge held that the plaintiffs had no 'locus standi' to bring the suit- This question was raised and adjudicated upon in the Court of the learned District Judge without any objection by the plaintiffs. Nothing has been shown that any such objection was taken by the plaintiffs. The appeal was therefore dismissed as also the suit and thus the decree of the trial Court was affirmed.
8. A second appeal was brought to this Court which was heard by my brother, Bhandari, J. & myself on the 11th May, 1951 and we dismissed it 'in limine'. In the grounds of appeal which were filed in this Court in the second appeal no objection was taken by the plaintiffs to the finding of the learned District Judge as to the 'locus standi' of the plaintiffs to bring the suit.
9. Leave is now prayed for to appeal to the Supreme Court on the ground that the case fails within Section 110 of the Code of Civil Procedure and being a judgment of affirmance it involves a substantial question of law, and under Section 109(c) that it is a fit case for appeal to their Lordships of the Supreme Court.
10. Counsel for the petitioner has contended that the principles to determine the ancestral nature of the property are well settled and they are that the mere name of the ancestor in the pedigree-table is not sufficient and that the descendants should hold the land in ancestral shares and should have got the land by inheritance. But he submits that the judgment of the District Judge which was affirmed in this Court in that the appeal was dismissed 'in limine', is erroneous because of the misapplication of these principles. If that is so, no substantial question of law is made out still less wanted (would?) this case fall within the phrase -- 'fit case for appeal to the Supreme Court.' The principles for the purpose of determining whether the land in the hands of a proprietor _ is ancestral or otherwise have now been settled by their Lordships of the Privy Council in 'Mt. Subhani v. Nawab', in ILR (1941) Lah 154, and in several other judgments of the Lahore High Court. In 'Jhanda Singh v. Mt. Banto', 8 Lah 584, a Division Bench of the Lahore High Court laid down the rule to determine the nature of the property & this case received approval of their Lordships of the Privy Council in 'SUBHANI'S CASE'. Therefore all that can be said is that in arriving at the finding that the property is non-ancestral the learned District Judge misapplied these principles and it was that judgment which was affirmed by this Court. The mere wrong application of well, defined principles of law is not a substantial question of (sic) In Mulla's Civil Procedure Code at page (sic) it is stated:
'The application, of well defined legal principle to a particular set of facts does not raise a substantial question of law.'
In 'Mt. Umrao Bibi v. Ram Kishan', 13Lah 251, Tek Chand and Tapp, JJ. held:
'That where the principles of law on a point, are well settled, the application of those principles to a particular set of facts cannot be said to be a substantial question of law with-in the meaning of Section 110 of the Code.'
The same was held in 'Ghulam sadiq v.Rallia Ram', 165 Ind Cas 735 (Lah), and inMathura Kurmi v. Jagdev Singh', 50All 208.
11. In 'Abdur Rehman v. Raghbir Singh', AIR (38) 1951 Punj 313, a Bench of this Court held that questions of law which have been definitely settled by the Privy Council or the High Courts'in India are not substantial questions of law within Clause (3) of Section 110 or Article 133 of the Constitution of India. In another Bench decision of this Court 'Nika Singh Badan Singh v. Ram Chand Mangtu Mal', AIR (36) 1949 E P 330, the same rule was laid down in the following words:
'A question of law which has been definitely settled by the High Courts in India and is one on which there is no difference of opinion is not a substantial question of law so as to justify granting of leave to appeal to the Federal Court.'
The same rule has been laid down in Bombay, in 'Kaikhushroo Pirojsha v. C. P. Syndicate Ltd.', 50 Bom L R 744, where it has been said:
'It is not easy to determine what a substantial question of law contemplated by Section 110 of the Civil Procedure Code is.....Todefine it negatively, for instance, if there is a well-established principle of law and that principle is applied to a given set of facts, there is no substantial question of law.'
The same view has been taken in 'Ganpat Rao v. Ishwar Singh', ILR (1940) Nag 29. As the principles for the determination of the ancestral nature of the land have been well settled, even if there is a misapplication of those principles, no substantial question of law within Section 110 of the Code of Civil Procedure arises.
12. It is then submitted by the petitioner that the judgment of both the Courts below and of the High Court is erroneous because in coming to the conclusion that the land is not ancestral some documents - were misconstrued, some documents were not taken into consideration by the learned District Judge and correct principles were not followed and that if the documents had been correctly considered the finding would have been different. This in my opinion is not a substantial question of law. Even if there is a misconstruction of revenue records that will not by itself bring the case within Section 110 of the Code of Civil Procedure. No precedent was quoted and no principle suggested which will bring this within the words 'Substantial question of law.'
13. Counsel next submitted that the District Judge was in error in allowing the question of 'locus standi' of the plaintiffs to bring the suit to be raised at the appellate stage because the question had not been received in the trial Court. The learned District Judge relying on 'Mt. Harnam Kaur v. Jagat Singh', AIR (23) 1936 Lah 108, held that among Jats of Ludhiana a gift made to a daughter cannot bechallenged by a collateral beyond the 4th degree. In the first place, no objection was taken Jo this question in the Court of the District Judge. In his judgment the learned Judge has stated as follows:
'Only two points were argued before me, firstly, whether the land was ancestral or otherwise and secondly whether the plaintiffs had a 'locus standi' to bring a suit when they were not collaterals upto the 4th degree.'
There is no indication of any kind that any objection was taken to the second point which was agitated before him. There was no ground of appeal raised in this Court and not even by stretching the language of the various grounds that were raised in this Court can it be said that the question of 'locus standi' was in any manner attacked. Counsel then took another argument that this was a question of jurisdiction and he relied on a Single Bench judgment of the Lahore High Court in 'Mt. Khadija Begum v. Nisar Ahmad', AIR (23) 1936 Lah 887, where it was held by Agha Haidar, J.:
'The Judge has no jurisdiction whatever under the law to raise a point against a plaintiff which is never pleaded nor proved, and which is a mere probability and not a fact as established by legal evidence.'
That was quite a different case and a different kind of question was allowed to be raised- At any rate it cannot be said that allowing a question to be raised without objection is a matter of jurisdiction, or if a point of law is allowed to be raised it becomes a decision without jurisdiction. Counsel then referred to 'Hem Chand v. Pearey Lal', AIR (29) 1942 P C 64. Although their Lordships said that allowing parties to adduce evidence on points which were not raised in pleadings is irregular and should not be allowed, nowhere has it been laid down that if this is done it is without jurisdiction.
14. At any rate even if this Question of 'locus standi' could not and should not have been allowed to be raised the question is not a substantial question of law and even if it was it would not arise if a finding with regard to the ancestral nature of the property is upheld.
15. It was next submitted that this is a At lease for appeal under Section 109(c) of the Code of Civil Procedure. I am unable to hold it to be so. It does not fall within the well-known rule laid down by Lord Hobhouse in 'Banarasi Parshad v. Kashi Krishna', 28 Ind App 11 at p. 13, or the rule laid down in 'Radhakrishna v. Swaminatha', 48 Ind App 31 at p. 33.
16. I am therefore of the opinion that this petition should fail and I dismiss it with coats.
17. I agree.