1. The suit out of which this appeal arises relates to the property of a family of Billavars of the South Kanara District who follow the Aliyasantana Law. It was originally filed by plaintiffs 1 to 12 alleging themselves to be members of the family against 42 other members of the family (defendants 2 to 43) and a mortgagee (1st defendant) for a declaration that two mortgage bonds executed by various members of the family were not valid and binding upon the family property. The defendants denied that these plaintiffs were in fact members of their family and an issue upon this point was raised. During the trial of the suit supplemental plaintiffs Nos. 13 to 19 were added, possibly to prevent an adverse finding upon this issue from involving the suit's dismissal, there being no question that these supplemental plaintiffs belong to the defendants' family. The learned Subordinate Judge has found that plaintiffs 1 to 12 are in fact members of the family and further that the suit mortgage bonds are invalid as against the property, but he gives the 1st defendant, the mortgagee, a charge on that property to the extent of Rs. 700 in respect of a binding liability to that amount. The appeal is preferred by the, 21st defendant, a member of the defendants' family to whom the 1st defendant has transferred his rights, and it is contested by plaintiffs 1 to 11.
2. We propose first to deal with the question of disputed relationship. The contentions of plaintiffs 1 to 12 are illustrated by the family tree attached to the plaint. From this it will be seen that plaintiffs 1 to 11 claim descent from one Dere, daughter of one Sankaru, who was a grand-daughter of another Sankaru, the common ancestor, the defendants and a large number of offers being shown as descended from junior branches deriving from the same original source. The 12th plaintiff claims a descent quite separate from that of the remainder. She will be found entered as Chomu, daughter of the 20th defendant, Devi, and sister to 26th and 27th defendants, Karia and Dooma. It is necessary therefore to consider the claims of plaintiffs 1 to 11 and of the 12th plaintiff separately, but there is one piece of evidence common to both, the admissibility of which may be decided at once. The trial of the suit was begun before the District Munsif of Kasargod and the 20th defendant was examined as defendants' first witness. In the course of her deposition she made certain statements in regard to the relationship of these plaintiffs which the Lower Court has deemed admissible; under Section 33 of the Evidence Act. After this evidence and some other had been taken the Court returned the plaint on the ground that the value of the subject-matter was above its pecuniary jurisdiction and it was accordingly filed in the Court of the Subordinate Judge from whose decision this appeal arises. The 20th defendant had died before she could be examined again and accordingly her deposition was made use of in the manner stated. Now Section 33 requires that evidence of this character, to be relevant, should have been given by a witness in a judicial proceeding, and it is contended before us that no proceeding is a judicial proceeding within the meaning of that section if it is conducted by a Court which has no jurisdiction to undertake it. There can be no doubt in our view that a Court which engages in the trial of a suit the value of which is beyond its pecuniary jurisdiction is doing something which it has no jurisdiction to do, just as much as if it tried a suit of a nature which it was not empowered to try or originating in some place to which its Jurisdiction did not extend. The provisions of Section 11 of the Suits Valuation Act with regard to pecuniary jurisdiction, and the parallel provision in Section 21 of the Civil Procedure Code with regard to territorial jurisdiction no doubt allow exceptions to the rule : that proceedings without jurisdiction are void and of no effect. They do not, as has been suggested to us, except in the circumstances in which they are applicable, give jurisdiction where it would not otherwise be enjoyed. If that is the effect of the decision reported in Raghavachariar v. Raghavachariar (1893) 20 M.L.J. 726 we are unable to agree, with it and we do not find that it has since; been followed or referred to. It is not possible in our view to draw any distinction, for the purpose of applying this section of the Evidence Act, between want of jurisdiction of one kind and of another, and it seems that a necessary test to discover whether what purports to be a judicial proceeding is in fact one lies in the competence of the judicial officer who conducted it. The circumstance that before he can verify his incompetence, he must often try the issue of jurisdiction by taking evidence does not necessarily make even that evidence admissible, as taken in a judicial proceeding, and much less so, where, as here, the evidence which it is desired to use relates not to the question of jurisdiction at all but to the merits, of the case. On the general question of the : effect of a lack of jurisdiction there is the authority of a case in this Court reported in Rami Reddi v. Seshu Reddi I.L.R. (1881) M. 48. It has also been held in, Buta Singh v. The Crown I.L.R. (1926) Lah. 396 that a proceeding before a Judge or Magistrate who has no jurisdiction is not a judicial proceeding and the evidence of a witness given In such a proceeding cannot be used under Section 33 of the Evidence Act on a re-trial before a competent Court, the; particular kind of jurisdiction involved in that case being territorial. For an expression of the general proposition that if a Court has no jurisdiction over the subject-matter of the litigation its proceedings are mere nullities reference may be made to Rajlakshmi Dasee v. Katyayani Dasee I.L.R. (1910) C. 639 We must accordingly hold that the contents of the. statement, Ex. A, cannot be used in evidence in this case. ...
[Their Lordships examined the evidence and continued : ]
3. There is not a vestige of legal evidence enabling us to trace the; descent of plaintiffs 1 to 11 from an ancestor common to themselves and the defendants, and we must hold accordingly that their claim to be members of the family has not been established.
4. Nor do we find any stronger evidence in support of the 12th plaintiff's claim. The learned Subordinate Judge himself confesses that but for the statement in Ex. A, which we have now held to be inadmissible, he would have decided against this plaintiff. We agree with him that the error which acceptance of this relationship would require, to be found in the mortgage bond, Ex. VII, cannot have been intentional and we would add that it is most unlikely in an Aliyasantana family that any doubt should exist as to the identity of any member's mother. The 12th plaintiff refrained from going into, the witness box where her claims might have been tested by cross-examination. We think the evidence clearly insufficient to show that she is related to the family in the manner alleged.
5. We turn then to the question of the validity and the binding character of the suit mortgage bonds.
6. [Their Lordships then discussed the evidence and concluded as follows :]
7. We have only to add that the supplemental plaintiffs have not thought fit to contest this appeal; so that, now that the original plaintiffs have been non-suited on the question of relationship, there is no one upon the record before us qualified to dispute the binding character of these mortgages. Apart from that circumstance however, we are clearly of opinion that they are binding upon the family property and we must accordingly allow the appeal, set aside the decree of the Lower Court and direct that the suit be dismissed with costs. Plaintiffs 1 to 11 will pay the costs of the 21st defendant in this appeal. The memorandum of objections preferred by the plaintiffs is dismissed with costs.