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Amarsingh and anr. Vs. Karnail Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Leave to appeal case No. 11 of 1955
Judge
Reported inAIR1956Raj169
ActsConstitution of India - Article 133(1); Code of Civil Procedure (CPC) , 1908 - Sections 110
AppellantAmarsingh and anr.
RespondentKarnail Kaur and anr.
Appellant Advocate Achluram and; Hukamchand, Advs.
Respondent Advocate M.M. Vyas and; Badrinarain, Advs.
DispositionLeave granted
Cases ReferredNathulal v. Durga Prasad
Excerpt:
.....judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; ' 4. the question for determination before us is whether the judgment or decree of this court involves directly or indirectly some claim or question respecting property of the like amount or value (i. we should, therefore, like to point out that many of the ob-servations contained in the earlier judgments as to the precise meaning and application of the wording in question must now be read subject to this vital difference. nevertheless, there is no gain-saying the position in law they were not required to make any such allegation and that their suit would have been perfectly good and competent even if they had not made the slightest reference to such..........at the time of her husband's death was concerned, and in that view decreed the plaintiffs suit. on appeal by the defendants, a bench of this court reversed the trial court's finding on the question of mt. karnai! kaur's pregnancy at the time of her husband's death and dismissed the plaintiffs' suit. the plaintiffs have filed this application for leave to appeal to the supreme court from the aforesaid decision.3. the application was argued before us mainly on the ground that it was covered by article 133(1)(b) of the constitution, that the judgment of this court was one of variance with that of the court below and that it would affect the plaintiffs' claim or right respecting property of the value of not less than rs. 20,000/-.we may point out that the application for leave to.....
Judgment:

Modi, J.

1. This is an application by the unsuccessful plaintiffs Amarslngh and Karamsingh for leave to appeal to the Supreme Court under Article 133(1)(b) and (c) of the Constitution against the judgment and decree of a Bench of this Court dated 13-7-1955, reversing the judgment and decree of the District Judge. Ganganagar, by which he had decreed the plaintiffs' suit.

2. The dispute between the parties in substance and effect relates to the right to succeed to the estate of the deceased Dayalsingh, nephew (being brother's son) of the petitioners, and the husband of opposite party No. 1 Mst. Karnail Kaur. The plaintiffs' case was that Mst. Karnail Kaur was not at all pregnant at the time of her husband's death on the 20th February, 1947, and, therefore, the alleged after-born son Jagrupsingh opposite party No. 2 was an impostor, not being the child of Dayalsingh.

There was a further allegation that Mst. Karnail Kaur had contracted a second marriage with Labhsingh, one of the sons of the plaintiff Amarsingh. The plaintiffs' suit was instituted directly to obtain a declaration to the effect above-mentioned. They valued their suit for purposes of jurisdiction at Rs. 10,000/- and paid a fixed court-fee of Rs. 20/- only.

The suit was resisted by Mst. Karnail Kaur on the grounds that she was in fact pregnant at the time of her husband Dayal Singh's death and 'that Jagrupsingh was her posthumous child and that the version of the plaintiffs that she had entered into a second marriage with Labhsingh son of the plaintiff Amarsingh was entirely false and without any foundation.

The trial court found in favour of the defendants on the question of re-marriage but against them so far as the question of Mst. Karnail Kaur's pregnancy at the time of her husband's death was concerned, and in that view decreed the plaintiffs suit. On appeal by the defendants, a Bench of this Court reversed the trial court's finding on the question of Mt. Karnai! Kaur's pregnancy at the time of her husband's death and dismissed the plaintiffs' suit. The plaintiffs have filed this application for leave to appeal to the Supreme Court from the aforesaid decision.

3. The application was argued before us mainly on the ground that it was covered by Article 133(1)(b) of the Constitution, that the judgment of this Court was one of variance with that of the Court below and that it would affect the plaintiffs' claim or right respecting property of the value of not less than Rs. 20,000/-.

We may point out that the application for leave to appeal appears to us to have been drawn up somewhat vaguely so as also to bring it within Clause (1) (a) of Article 133, but we do not propose to deal with it under that clause as the argument addressed to us was concentrated on Clause (1) (b) of that article. The relevant portion of Article 133 is in these terms:--

'An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-

(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty-thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court;and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.'

4. The question for determination before us is whether the judgment or decree of this Court involves directly or indirectly some claim or question respecting property of the like amount or value (i.e., twenty-thousand rupees or over).

We may point out at the outset that there have been decisions as to the interpretation of this requirement, which was covered by Section 110 before the Constitution came into force, and there appears to us to have been a noticeable controversy as to whether this clause was an independent one to the first paragraph of Section 110 or it was only an alternative to the second part of the first paragraph of Section 110, C. P. C. (See Govindbkai v. Dabyabhai, 1937 Bom 326 (AIR V 24) (A) and Champamani Bibi v. Mohammad Yunus, 1951 Pat 177 (AIR V 38) (B) in this connection.)

It was also held that to read the clause as a provision independent of para (1) of the section would render the provision in para (1) as to the value of the subject-matter in the court of the first instance a dead letter.

We do not propose to go into this controversy because, in our opinion, even if there was room for such a controversy on the wording of Section 110 it stood or even now stands, that section must now be read subject to Article 133 of the Constitution and so far as the language of that article and the arrangement of the various clauses thereof are concerned, we have no hesitation whatsoever in holding that Clause (1) (b) of Article 133 must be read as an independent clause and not as an alternative to any portion of the next preceding clause_ Each of the clauses is marked separately and begins with the conjunction 'that', and there can be no manner of doubt that they stand in the article as independent entities. We should, therefore, like to point out that many of the ob-servations contained in the earlier judgments as to the precise meaning and application of the wording in question must now be read subject to this vital difference.

5. The question which then arises is whether the present case fulfils the qualifications prescribed in this clause reading it independently of Clause (a). In this connection our attention has been invited on behalf of the applicants to the written statement of Mst. Karnail Kaur dated 27-11-1947, wherein she stated in para 8 that the market value of the property which would be affected by the suit was at least one lac of rupees and that the plaintiffs had undervalued their suit.

It has been strenuously submitted on behalf of the applicants that the value of the property, of which they would be deprived as a consequence of the decision of this Court, would certainly exceed Rs. 20,000/-, as the value of the one-thirdshare to which opposite party Jagrupsingh would be entitled would be 1/3rd of one lac of rupees, that is, about Rs. 33,000/-. That this would be the effect of the decision of this Court is not disputed, before us on behalf of the opposite parties even at this stage.

What is, however, disputed before us on their behalf is that the plaintiffs had themselves valued their suit at Rs. 10,0007- only for purposes of Jurisdiction in the trial Court and that it was not open to them to contend now for the purposes of the present appeal that the value of the subject matter of the dispute was Rs. 20,000/- or over.

The contention was also raised that Clause (1)(b) of Article 133 should not be applied in such a way as to make Clause (a) nugatory and reliance was placed in support of this contention on certain decisions bearing on Clause (2) of Section 110, C. P. C. and among which our attention 'was specifically drawn to Subramania Aiyar v. Sellammal, 1916 Mad 985 (AIR V 3) (C) which was approved by Privy Council in Mangamma v. Mahalakshmamma, 1930 PC 44 (AIR V 17) (D), and which has also been follow-'' ed by this Court in Nathulal v. Durga Prasad, 1953 Raj 36 (AIR V 40) (E).

6. Now what we desire to state in this connection is that the plaintiffs' present suit was not a suit for any specific property or for a 'declaration with respect to any such property, but it was a suit for obtaining a declaration that the opposite party Mst. Karnail Kaur was not in a state of pregnancy at the time of her husband's death and that her alleged posthumous child Jagrupsingh was, therefore, not the son of her husband Dayalsingh.

It is clear, therefore, that no property as such was the subject-matter of dispute between the parties. It is true that the plaintiffs in their plaint gave certain specifications of the lands the title ' to which would be affected if the required declaration was or was not given in their favour; nevertheless, there is no gain-saying the position in law they were not required to make any such allegation and that their suit would have been perfectly good and competent even if they had not made the slightest reference to such property. Nor were they required in the suit brought by them to value it with reference to the value of the property which was ultimately going to be affected by the result thereof.

We are further of opinion that the suit for a declaration in the terms sought by the plaintiffs was not at all capable of precise valuation from the pecuniary point of view and, therefore, such valuation as the plaintiffs put upon it was plainly notional rather than real, or commensurate with the market value of the property which was bound to be affected by the suit one way or the other.

In these circumstances, we are disposed to hold that the mere circumstance that the plaintiffs valued their suit for jurisdictional purposes at the sum of Rs. 10,000/- should not be allowed to stand in the way of their showing that the suit directly or indirectly affected the property of the value of Rs. 20,000/- or over.

We are also of the opinion that it is to cases of this character where the subject-matter of dispute is not a sum of money or a specific piece of property but is something which is incapable of a precise or arithmetical valuation and which would therefore fall outside the ambit of Clause (1)(a) of Article 133 that Clause (b) thereof is intended preeminently to apply.

We further think that where in such cases the applicant succeeds in showing that the judgment of the High Court would affect directly or indirectly some claim or question relating to property of the requisite value, namely, Rs. 20,000/- or over, as in the present case he would be entitled to obtain leave as a matter of right independently of Clause (a) or Clause (c) provided of course where the judgment of the High Court is one of affirmance with that of the court below, the High Court further certifies that the appeal involves some substantial question of law.

7. This is the conclusion to which we have come on a reading of the various clauses of Article 133 of the Constitution as they now stand. We are however, of opinion that the result would still be the same in a case like the present on a consideration of the authorities relied on by the opposite parties, and in this conclusion we would like to refer to Subramania Aiyar v. 'Sellammal (C) in the first instance.

The precise question for decision there was whether where the value of the subject-matter of the suit in the court of first instance was less than Rs. 10,000/-, but the value of the subject-matter in dispute on appeal to His Majesty in Council could be arrived at by adding to such value the mesne profits for the period between the institution of the suit and the petition for the certificate, and it was held that this could not be done.

That was obviously a case under the first paragraph of Section 110, C. P. C. The contention was, however, advanced that leave to appeal should be granted under the second paragraph of Section 110, as the value at that time would then be Rs. 10,000/- or over. It was held by Wallis C. J, that the second paragraph of Section 110 should be read as applying only to cases which involve some claim or question respecting property additional to the actual subject-matter in dispute in the appeal and to be taken into account therewith in making up in the appealable value.

Srinivasa Aiyangar J. who was the other learned Judge who was a party to that case observed that in his judgment the first clause applied to cases where the decree awarded a particular sum or property of a particular value, or refused that relief, and that in such cases unless the conditions of Clause (1) were fulfilled, there was no right of appeal.

The learned Judge went on to point out, however, that if the decision beyond awarding relief in respect of the particular object-matter of the suit affected rights in other properties, the second clause would apply, and it would also be attracted into application where the matter in dispute was one which was incapable of Valuation as in the case of easements. We have already held above that the present case is a case of the latter description and it would, therefore, appear to fall even within paragraph 2 of Section 110 as it has been interpreted before the Constitution, came into force, The decision of the Privy Council in Mangamma v. Mahalakshmamma (D) which approved the Madras decision (C) cited above did not decide anything to the contrary.

The case before their Lordships of the Privy Council was also a case which fell within the first paragraph of Section 110 and was not a case in which the relief claimed was not capable of a precise valuation. The view taken in the Madras case cited above to the effect that the second paragraph of Section 110, C. P. C. may apply to cases involving claims incapable of money valuation also appears to us to have been adopted in Katar Singh v. Ramkumar, 1953 Pat 377 (AIR V 40) (F).

We are also clearly of opinion that there is nothing in Nathulal v. Durga Prasad's case (E) which militates against the view which has commended itself to us in the present case, although we should like to say that on a closer examination of the two provisions, we consider that it would not be correct to postulate that the provisions of Article 133(1)(b) are exactly alike those contained in the corresponding part of Section 110, though there is a marked similarity between them, and Article 133, in our opinion, is no longer open to the ambiguity to which Section 110, C. P. C. has been held to be subject.

The point in Nathulal's case was whether the value of the subject-matter of the suit under paragraph one of the Section 110 could be added to the value of the other property in making up the appealable value under paragraph two of Section 110, C. P. C. on which point Ranawat J. held in the affirmative but the Chief Justice was not prepared to express a final opinion on that aspect of the case but instead was agreeable to the grant of a certificate under Clause (c) of Section 109 corresponding to Article 133(1)(c) of the Constitution.

Be that as it may, in the above case also the observations of Srinivasa Aiyangar J. that the second paragraph of Section 110 would apply where the matter in dispute is incapable of exact pecuniary, valuation were obviously cited with approval.

8. We have, therefore, arrived at the conclusion that in view of the law as laid down in Article 133(1)(b) of the Constitution or even having regard to the state of authorities on the interpretation of Section 110, C. P. C. with respect to this classof cases, which are incapable of precise moneyvaluation, we should hold that the present application falls within the four corners of Article 133(1)(b) and, therefore, the applicants are entitled toget a certificate for leave to appeal to the SupremeCourt. We certify accordingly.


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