Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed by the respondent on the Original Side of this Court for a declaration that a piece of land conveyed to the appellant under a deed dated the 30th October, 1925, is her property and that she is also entitled to the house built thereon. The respondent's case is that she acquired the site and built the house out of the proceeds of a milk business belonging to her. The appellant claimed that the milk business belonged to him and that the property was his. The suit was tried by Venkataramana Rao, J., who held that the property belonged to both of them in equal shares. Consequently, the learned Judge granted a decree for partition and the delivery to the respondent of her half share with mesne profits. The respondent has not appealed, and the main question which the Court is called upon to consider is whether the appellant is entitled to the share allotted to the respondent; in other words whether he is absolute owner of the site and the house. The procedure which was adopted in this case was not in accordance with that contemplated by the Code of Civil Procedure, and it is necessary also to consider the effect of this. It will be convenient to deal first with the question relating to the procedure adopted.
2. The plaint was filed on the 18th November, 1930. The hearing was interrupted after a portion of the plaintiff's evidence had been recorded by Lakshmana Rao, J., and on the 1st October, 1935, the following order was passed by the learned Judge with the consent of the parties:
1. That this suit be and is hereby referred to the Official Referee of this Court for the determination of the following issues, namely:
(i) Did the plaintiff carry on milk business or any other business of her own and was the defendant entrusted with the management of all or any of the said business as her agent? If so, is the defendant liable to render an account?
(ii) Was the said house No. 14, Pallappan Street, Triplicane, Madras, purchased and constructed out of funds belonging to the plaintiff in the name of the defendant benami for the plaintiff? If so, is the defendant liable to account to the plaintiff for the mesne profits?
(iii) Is the defendant in possession of all the movable properties mentioned in the Schedule 'B' to the plaint and do any of them belong to the plaintiff?
2. That the said Official Referee do give his findings on the said issues and submit his report and proceedings thereon to this Court expeditiously.
3. That the evidence recorded herein so far, shall be treated as evidence before the said Official Referee and the said Official Referee do continue the enquiry from the stage at which it was stopped.
4. And that the further consideration of this suit do stand adjourned until after the receipt of the report of the said Official Referee by this Court.
3. In accordance with this order the Official Referee recorded the further evidence tendered by the parties and the depositions and exhibits comprise a volume of nearly 200 printed pages. The Official Referee presented his report to the Court on 2nd September, 1937, and it was considered by Venkataramana Rao, J., on 12th May, 1938. I should mention that shortly after the consent order of 1st October, 1935, had been passed the respondent applied to Lakshmana Rao, J., to recall the order on the ground that the Official Referee had no jurisdiction to conduct the inquiry into the questions set out therein and that it had been passed without the position being fully realised. The learned Judge, however, refused to recall the order and stated his reasons in these words:
The suit was referred to the Official Referee by consent and it is this Court that goes finally into all the questions and decides the right of the parties. There is therefore no need to or ground for review and the application is dismissed with costs.
4. The question relating to the procedure adopted was raised before Venkataramana Rao, J., who considered that it was unlawful and expressed the opinion that Lakshmana Rao, J., should have recalled the order of reference. Inasmuch as the suit was of long standing and the parties had agreed that the evidence recorded by the Official Referee should be treated as evidence in the trial, the learned Judge decided not to put the case back for trial de novo and gave his judgment on the evidence recorded by the Official Referee, but he did not ignore the Official Referee's report altogether.
5. There can be no doubt that the procedure adopted in this case was not only irregular, but was opposed to the provisions of the Code of Civil Procedure and had no sanction from the rules of practice of the Original Side of this Court. I entirely agree with the observation of Venkataramana Rao, J., that Lakshmana Rao, J., should have recalled the order of reference when the application was made to him by the respondent. As a matter of fact he ought to have refused to pass the consent order. The questions raised in the issues were entirely within the province of the Judge, and, as Venkataramana Rao, J., has said, the Court had no jurisdiction to refer them to any one for decision unless the parties had agreed to submit their disputes to arbitration. This very question was raised before Kumaraswami Sastri, J., in C.S. No. 661 of 1920 and, with Venkataramana Rao, J., I am in agreement with the following observations which Kumaraswami Sastri, J., made in that case:
He the Official Referee) is not a Judge of the Court but only a Commissioner and I think that the adjudication by him of these questions, which under the Code and the rules, form part of the functions of a Judge would be ultra vires. The Judge referring to the Official Referee questions which have to be tried by himself could not confer jurisdiction on the Official Referee any more than he can confer jurisdiction on a stranger by asking him to decide points in dispute in the case. Questions as to the substantive rights are solely within the province of a Judge and matters of detail, that is, the working out of those rights either by taking accounts or effecting a partition or selling properties are, under the rules, functions which the Judge may delegate to the Official Referee.... It will be a novel and, in my opinion, a dangerous proposition to hold that the Rules of Practice in English Courts apply en bloc to the original side except so far as our own rules modify them.
6. In a suit of the description of the one now under consideration the Court has no power to adopt the rules of practice in England. Order 26 of the Code of Civil Procedure states when commissions may be issued. They may be issued for the examination of witnesses, for the purpose of local investigations, for the purpose of examination of accounts and for the effecting of partition, but for no other purposes. Order 23 of the rules of the Original Side states the procedure which should be followed when there is a reference, but they do not purport to enlarge the powers of the Official Referee or authorise the issue of commissions beyond those mentioned in the Code of Civil Procedure.
7. Counsel are agreed, as they were agreed before Venkataratnana Rao, J., that the Court shall treat the evidence recorded by the Official Referee as being evidence recorded by the Court and they are content that the rights of the parties shall be decided on what appears in the printed record, but they suggest that the report of the Official Referee should be eliminated. It seems to me that it is open to the Court in the circumstances of this case to adopt this course. I consider that the Court should ignore the report of the Official Referee, and I may say that neither I nor my learned brother has read it. Approval for the suggested course may be obtained from the decision of the Privy Council in Sri Thakur Ramkrishnp, Muraji v. Ratan Chand (1931) 61 M.L.J. 665 : L.R. 58 IndAp 173 : I.L.R. 53 All. 190 . In that case an ancestral business of a Mitakshara joint family had been carried on in partnership with another person. The stranger partner retired and thereupon the partnership was dissolved and wound up. The business was then carried on in the same commodities and in the same premises though under a new firm name and with new books. It was alleged that speculative transactions were subsequently entered into and it was contended that the business could not be regarded as a family affair. When the case was before the High Court on appeal a commissioner was appointed to examine the books and report whether the new business was of a gambling nature. The Privy Council disapproved of this course as this question was one for determination by the Judge alone. As their Lordships were not aware whether the order referring to the Commissioner was made under protest by the appellant-defendant or with his consent, they were not prepared to hold that the report of the Commissioner should be disregarded, and in fact took it into consideration along with the other evidence in the case. In the case before us the consent of the respondent to the matter proceeding before the Official Referee was withdrawn and it is for that reason that I consider that the report of the Official Referee should not be considered. As the parties have expressly agreed before us that the evidence recorded by the Official Referee shall be treated as evidence in the case there can be no objection to the Court taking that evidence into consideration, but at the same time I trust that in future similar references will not be made to the Official Referee.
8. Turning now to the facts, the respondent is the wife of one Balasundara Mudaliar whom she married in 1898. In 1919 the appellant married the daughter of the respondent's brother. He had been married before, but his first wife had died. At the time of the appellant's marriage the respondent and her husband were living in her brother's house with her brother and his family. In 1920 the appellant became ill and he went to live in his father-in-law's house. That year his wife and his daughter by his first wife were accidentally drowned. The appellant continued to live in the respondent's brother's house and it is now common ground that improper relations developed between the appellant and the respondent. This was persisted in and resulted in the respondent's husband leaving the house in 1921, since when he has never returned to live with the respondent. The illicit intercourse between the appellant and the respondent continued and eventually they lived openly as man and wife. The site of the house was bought in 1925 and the house was built during the years 1927 and 1928. When it was completed the appellant and the respondent left the respondent's brother's house and went to live in the new house and continued to do so until 1930 when they quarrelled. The appellant says that he provided the whole of the money for the purchase of the land and for the building of the house, but it appears to me to be abundantly clear that he had not sufficient resources of his own to meet anything like the cost of this property. The site was bought for Rs. 1,989-5-4 and over Rs. 10,000 was spent on the building of the house. The appellant was a police constable and never in his service drew more than Rs. 38 a month. He retired from the police force in 1924 on a pension of Rs. 11 a month. The evidence discloses that the respondent had means. It is admitted that when the appellant went to live in her brother's house she had two businesses, one in dhall and the other in lungis, and it has been proved that she was carrying on a milk business as long ago as 1911, The lungi business was closed in 1922, because of the fall in price of piece goods and the dhall business was closed in 1924. The reason given for the closing of the dhall business was that the milk business in which the appellant was assisting had so grown and was so profitable that there was no time for the dhall business. The evidence also discloses that the respondent was in the habit of lending money and that she had a post office savings bank account.
9. I agree with the learned trial Judge that the fact that the land was bought in the name of the appellant is not of very great importance. When it was bought the appellant and the respondent were living openly as man and wife and this no doubt accounts for the fact that the land was taken in the name of the appellant. It is also true that some of the money for the building of the house was borrowed in the appellant's name. It would be far easier for a man, than a woman, to borrow money and as they were living together and were going to live in the new house it was only natural that the appellant should borrow money in his own name. I concur in the finding of the learned trial Judge that the milk business belonged to the respondent and that the house was really bought from the profits of this business.
10. The learned Judge awarded the appellant a half share in the property because he considered that it was
Unlikely that the appellant would have retired from service but for some understanding between them that the business should be shared equally between them and that whatever was earned by either must be shared by either.
11. In these circumstances the learned Judge considered that there was an agreement of partnership subsisting between them. As I have indicated, this finding has not been challenged. It has been stated at the Bar that the respondent had not the means to pay the court-fee necessary for a cross-appeal. That is a question which the Court cannot go into now. There was no application for leave to appeal in forma pauperis and the Court can only assume that the respondent acquiesced in this part of the judgment of Venkataramana Rao, J. On the evidence the appellant can clearly not maintain a claim for more than what has been awarded to him. The learned Judge has discussed the evidence in detail and I consider that the reasons which he has given for finding in favour of the respondent to the extent of a half share in the property cannot be seriously challenged. Whether the respondent might have succeeded if a cross-appeal had been filed is a question which does not in the circumstances require to be considered.
12. For the reasons indicated I would dismiss the appeal with costs.
Krishnaswami Aiyangar, J.
13. I am in entire agreement with the judgment just pronounced by my Lord. I shall, however, add a few words on the question as to what matters are properly referable for inquiry to the Official Referee. Before the creation of the office of the Official Referee some 25 or 30 years back, the practice on the Original Side was to entrust inquiries into accounts and such other matters as are referable to a Commissioner under Order 26 of the Code of Civil Procedure, to a Commissioner appointed ad hoc by the Court. There were delays in the submission of reports and defects noticed in them which necessitated fresh references. For these and other reasons, it was felt it would be a great advantage to have a permanent officer with the necessary training and experience to enable him to do in a more satisfactory way what was till then being done by a Commissioner. To start with, it was certainly not the idea to delegate to the Official Referee any of the functions of the Court. Neither is there anything in the Rules of the Original Side to warrant the view that there has since been an enlargement in the scope of the functions of the Official Referee. He is to be no more than a permanent Commissioner for the purpose of taking the accounts and making the inquiries contemplated by the Code of Civil Procedure. Order 23 of the Rules of the Original Side contain the provisions relating to the appointment of a Commissioner, and a definition of the matters which could be left to him for enquiry and report. There is nothing m Order 24 of the Original Side Rules to suggest that it was the intention to give him an extended jurisdiction. Rule (1) of this order says that
Subject to the Rules hereinafter contained, Order 23 of the rules relating to accounts and enquiries referred to a Commissioner shall, as far as practicable, apply to all proceedings before the Official Referee.
14. This is a fair indication that the Official Referee is only expected to perform the functions of a Commissioner under the Code and that it was never intended that he should have power to deal with or decide material questions of fact or law on which the decision of the suit itself depends. So far as my knowledge goes questions of this character were rarely if ever referred to the Official Referee for decision or report. Such a course might have been taken in a few exceptional instances but I think that it happened almost always because both sides consented to it and invited the presiding Judge to adopt this procedure. In such cases the inquiry generally went on without demur and the report when made was taken into consideration by the Court. I am not aware that there has been any instance of a reference being made on substantial questions in contest between the parties, without their express consent, or the Referee's report considered valid in spite of objection taken to his jurisdiction to try. I may also observe that whenever during an inquiry before the Official Referee material questions of fact or law arose it has been the practice ordinarily for the Referee to refer those questions to the Court or ask the parties to take the orders of the Court thereon. Questions of title to property and such other material questions were as a rule dealt with by the Court.
15. I agree that in view of the fact that in the present case the consent had been withdrawn even before the commencement of the inquiry before the Official Referee there is good reason for ignoring the findings of the Referee altogether, though there can be no objection to the evidence recorded by the Official Referee being treated as evidence in the case with the consent of the parties. It is on this footing that we have considered the appeal, learned Counsel on both sides having expressly assented to this course.