Krishnaswami Ayyangar, J.
1. This appeal arises out of a suit instituted by the appellant for partition and recovery of a share of the property left by her deceased husband Thangavelu Pillai by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. This. Act became law on 14th April 1937, when it received the assent of the Governor-General. Before the Act, a widow had no right to a share in any part of her husband's property, if the husband died as a member of a coparcenary or had left a son or sons surviving. For the first time the Act gave her such a right. Thangavelu Pillai who died on 28th June 1939, had married three wives in succession. The appellant is the second of his wives. Her two co-widows are Ammakannu Ammal and Dhanabagiammal, impleaded as defendants 1 and 2 in the suit. His only son, Kanakasabapathi still a minor, by his third wife Dhanabagiammal was joined as defendant 3. It is common ground that the estate left by Thangavelu Pillai comprised amongst others, agricultural lands. Under the Act, the appellant is entitled to a one-sixth share in the divisible properties. No question arises about the quantum of the share; the only question is, what are the properties liable for division in the suit?
2. The suit was instituted on 5th July 1939, more than two years after the enactment of the Hindu Women's Rights to Property Act, 1937. In her plaint the appellant claimed a share in all the assets left by Thangavelu Pillai, including the agricultural lands. Neither in the written statements filed by the defendants nor in the issues framed for trial was objection taken to the demand for a share in such lands on the ground that the Act did not apply to agricultural lands. It was not pleaded that so far as such lands are concerned her claim should be determined by the ordinary Hindu law and not by the Act. The result was that when the Subordinate Judge came to pass the preliminary decree on 31st July 1940, he declared the right of the appellant to a share in all the properties in suit including the agricultural lands and directed the appointment of a commissioner for effecting a division by metes and bounds. In pursuance of the preliminary decree the plaintiff applied on 2nd October 1940, for the appointment of a commissioner for effecting the division, and for the passing of the final decree. Accordingly on 30th October 1940, the Court appointed a commissioner for effecting the division of the properties, and he made his report on 14th April 1941, submitting a scheme for the division of the immovable properties which consisted of house property of the value of Rupees 22,000 and agricultural lands of the value of Rs. 14,280. It is obvious that up to this point of time, the parties, as well as the Court and the commissioner all proceeded on the assumption that the Act applied to every species of property in a Governor's province, without exception and that the plaintiff was entitled to a share in the entirety of her husband's estate. It would seem that just at this time, the question whether the Hindu Women's Rights to Property Act, 1937 (Central Act 18 of 1937), and the Hindu Women's Rights to Property (Amendment) Act, 1938 (Central Act 11 of 1938), operated to regulate succession to agricultural land, a subject which fell within the exclusive jurisdiction of the Provincial Legislature by reason of Entry No. 21, Part II of Schedule 7, Government of India Act, 1935, was pending decision in the Federal Court. On 22nd April 1941, that Court pronounced its judgment declaring that the Acts in question do not operate to regulate succession to agricultural land in the Governor's provinces. It was after the publication of this decision that the contesting defendants, namely, defendants 2 and 3, woke up to discover that the appellant was not entitled under the provisions of the Hindu Women's Rights to Property Act, 1937, to claim a share in agricultural lands and they accordingly took the point in their objections to the report of the commissioner filed on 23rd June 1941. The matter came up before the Court on 13th September 1941 when the Subordinate Judge framed the following questions for decision: (1) Whether the plaintiff and defendants l and 2 are entitled to have a final decree passed also in respect of the agricultural lands of their husband; and (2) Whether the commissioner's report should be accepted.
3. After hearing arguments, the Subordinate Judge pronounced his order on 15th September 1941. He held that notwithstanding the fact that the preliminary decree which had not been appealed against had become final, it was open to him to rectify that decree, by giving effect to the decision of the Federal Court and accordingly ruled that the agricultural lands should be excluded from division in the final decree to be passed. The reasons he gave for the view he took may be stated in his own words:
It follows that the decision of the Federal Court that the Imperial Legislature had no power to pass legislation affecting agricultural lands and that the provisions of the Hindu Women's Bights to Property Act cannot affect the agricultural lands. But it is only in pursuance of such illegal legislation that a preliminary decree has been passed. Now when it is clear that the legislation itself is bad, a decree of Court giving effect to the said legislation must also be bad and must be held to be illegal on the face of it and as such I think no Court can give effect to an illegal decree. In fact the decree must be construed to be one passed without jurisdiction, since the Court gets jurisdiction to pass such a decree only by virtue of the said Act which has now turned out to be an illegal one in so far as the agricultural lands are concerned.
It is obvious that by the expression 'illegal legislation' here used, the Subordinate Judge only meant to convey the idea that the Indian Legislature had exceeded its powers in enacting a law regarding succession to agricultural land situate in a Governor's province and, that to the extent to which it purported to do so, the enactment must be held to be null and void. Therefore he regarded the preliminary decree which had not taken note of this illegality as also illegal on the face of it, so much so he thought it his duty to bring it into conformity with the law by excluding the agricultural lands.
4. The appellant contests the correctness of this decision and on her behalf it is urged that the Subordinate Judge is in error in thinking as he presumably did, that the preliminary decree is illegal in the sense that it was one made without jurisdiction in so far as the agricultural lands were concerned and that it was therefore open to him to correct it, notwithstanding that it had become final. That it has become final is not questioned. For Section 97, Civil. P. C, clearly enacts that, 'Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.' The finality which, in the events which have happened, attaches to the decree will, of course, be of no consequence if the Court had purported to exercise its jurisdiction under a statute which did not in fact confer it. The Subordinate Judge is apparently of the opinion that he derived his jurisdiction to pass the preliminary decree from the Hindu Women's Rights to Property Act, 1937, and as that Act did not confer on him jurisdiction in respect of agricultural lands the decree passed by him on the footing that it did, is a nullity. This, in our opinion, is a fundamental error due to a misconception of a source of his jurisdiction which is really derived not from that Act but from the Madras Civil Courts Act, 1873, and the Civil Procedure Code, 1908. Section 4 of the former Act empowers the Provincial Government to fix the number of Subordinate Judges to be appointed under the Act and to vary it from time to time. Each of the Judges so appointed is authorised to exercise all or any of the powers conferred on the Court by that Act or any other law for the time being in force. Section 12 enacts that
the jurisdiction of a District Judge or Subordinate Judge extends, subject to the rules contained in the Civil Procedure Code, to all original suits and proceedings of a civil nature.
5. A Subordinate Judge accordingly possesses unlimited pecuniary jurisdiction, unlike a District Munsif whose jurisdiction is limited to suits in which the amount or value of the subject-matter does not exceed Rs. 3000. If we now turn to the Civil Procedure Code the first section to be noticed is Section 9 which confers on the Courts established by law, jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The explanation to the section makes it plain that a suit in which the right to property is contested is a suit of a civil nature. Section 15 states that every suit shall be instituted in the Court of the lowest grade competent to try it. Section 16 and the sections which immediately follow it lay down the rules which determine territorial jurisdiction. Tested by these sections, it is common ground that it is the Court below which is the Court competent to try the present suit, possessing, as it did, the necessary jurisdiction pecuniary as well as territorial. It is needless to add that suits of this nature have not been excepted from the cognizance of the Subordinate Judge's Court. It would thus seem that all the conditions necessary for conferring jurisdiction upon the Subordinate Judge were present and he was therefore competent to try the suit.
6. If we now look at the plaint and consider it in the light of the decision of the Federal Court, the only criticism to be made is that it includes a claim for the partition and recovery of a share in properties in which the Hindu Women's Rights to Property Act, 1937, did not give her a share. In other words, the plaint included a claim which was untenable and which might even be taken as being untenable on the face of it, though the untenability was only discovered after the decision of the Federal Court. The untenability of a claim is undoubtedly a reason for disallowing it. But, if the Court wrongly allows it, the error may be corrected by resort to one or other of the modes known to law, viz,, by review, appeal, revision or by suit, according to circumstances. Such attempts to vacate, modify or correct a decree of a competent Court by proceeding in one of the modes permitted by law are what may be termed, direct attacks which will succeed if the error of fact or the deviation from law which is said to vitiate the decree or order is established. But a collateral attack is an attempt to avoid, defeat or evade the decree or order or to deny its effectiveness by or in a proceeding, other than a direct attack, with the object of rendering it a dead letter, a nullity to be ignored. If we bear this distinction in mind, it is clear that the preliminary decree originally passed by the Subordinate Judge was sought to be challenged by what was in substance a collateral attack after the contesting defendants had let go the right and opportunity they undoubtedly had under the law to challenge its correctness by an appeal, that is to say, by a direct attack. The question thus presented is but an aspect of the doctrine of collateral attack which as will be shown can only succeed if an absolute lack of jurisdiction over the subject-matter is established.
7. Ledgard v. Bull (1987) 9 All. 191 is a decision of the Privy Council in the course of what should be deemed a direct attack against the judgment of the District Judge of Cawnpore in a suit for the infringement of a patent, instituted in the Court of the Subordinate Judge of the same place. By Section 22 of the Act, 15 of 1859, an action for the infringement of a patent was maintainable only in the principal civil Court of original jurisdiction which was the District Court. The District Judge having withdrawn the suit to his own file on a petition for transfer filed before him under Section 25, Civil P. C, 1877, tried and decreed the suit, overruling both of two objections specifically taken by defendant in his written statement. Of these one alone is relevant for the present purpose. That objection was that under the Act 15 of 1859, the Court of the Subordinate Judge in which the suit was filed was incompetent to entertain it and that this initial defect is not cured by the transfer, because the order of transfer was itself incompetent, as the District Court had no jurisdiction to make an order of transfer unless the Court from which the transfer was sought had itself jurisdiction to try it. The objection thus taken to the jurisdiction of the District Judge was sought to be got over by a plea of waiver by reason of the conduct of the defendant in concurring with the plaintiff in the application for the transfer, but this plea was negatived. The Board had thought it necessary to examine and expound the law relating to the question of jurisdiction as commonly spoken of and the observations in this behalf are of much value in the present context. Their Lordships said:
The defendant pleads that there was no jurisdiction, in respect that the suit was instituted before a Court incompetent to entertain it, and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit if it were competently brought, and their Lordships do not doubt that in such a case a defendant may be barred, by his own conduct, from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit.
The distinction here drawn is between the case where a Court has no inherent jurisdiction, and its judgment is therefore wholly void, coram noa judice, and a case where the proceedings are taken in a Court of competent jurisdiction, but irregularities are committed which if objected to in time would have entailed a dismissal. Although the consequences of a mere error of decision in the latter classes of cases are not in terms stated, the observations of the Board sufficiently imply that the judgment would not be open to avoidance or evasion by collateral attack if the party who had the opportunity omitted to take advantage of it by taking the objection at the proper time, and, if we may add, by the proper mode as well. The observations extracted above were repeated by the Privy Council in Minakshi v. Subramaniam (1988) 11 Mad. 26 which was an appeal from a decision of the Madras High Court in an appeal which had been heard and disposed of against the decision of the District Judge of Madura. No appeal really lay from the order of the District Judge, but the objection to its maintainability had not been taken before the High Court. The judgment of this Court was set aside with the comment that in the case on hand there was an inherent incompetency in the High Court to deal with the question brought before it, and no consent could confer that jurisdiction which the High Court never possessed. This case provides another instance of a direct attack. Malkarjun v. Narhari (1901) 25 Bom. 337 furnishes an illustration of the doctrine of collateral attack which can prevail only if the Court which made the decree or order questioned, had acted wholly without jurisdiction. Nagappa had mortgaged his properties to the defendant, who subsequently purchased them at a sale in execution of a simple money decree obtained by a stranger against the mortgagor. The question was whether the court sale was a nullity, because the preliminary notice of the execution petition, required by Section 248 of the Code of 1877 corresponding to Order 21, Rule 22 of the present Code was served on two persons, Ramalinga and Wyankappa, wrongly stated to be the legal representatives of the deceased judgment-debtor; the true legal representatives namely the plaintiffs, not having been served at all. Ramalinga objected that he was not the legal representative, but the executing Court wrongly held that he was the true representative and went on with the execution, . with the result that the property was ultimately sold to the defendant. The plaintiffs who could have had the sale set aside either by application under Section 311-now Order 21, Rule 90 of the Code, or by suit within one year under Article 12, Clause (a), Limitation Act, took neither course, but instituted a suit for redemption entirely ignoring the court sale. The defendant set up his purchase in court auction in defence of the suit. The trial and the appellate Courts dismissed the suit, but on second appeal the High Court of Bombay granted in effect a redemption decree as prayed for by the plaintiffs. The defendant appealed to the Privy Council, and their Lordships reversed the judgment of the High Court, and dismissed the suit. After observing that the decision of the High Court must rest on the principle that the sale was an absolute nullity, having been held in proceedings taken by the executing Court wholly without jurisdiction Lord Hobhouse pointed out that the case was one in which the Court had jurisdiction to act but only it committed an error in deciding that Ramalinga was the right legal representative, an error which did not render the sale null and void. The grounds of the decision will appear from the following passage:
The Code goes on to say that the Court shall issue a notice to the party against whom execution is applied for. It did issue notice to Ramalingappa. He contended that he was not the right person, but the Court having received his protest decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law.
The language employed in this passage suggests that where the Court has jurisdiction over the subject-matter, but arrives at an erroneous decision by misconstruing a statute, it can only be set aside by appropriate proceedings directly taken for the purpose and not simply ignored as a nullity. That is the reason why their Lordships point out later in their judgment that it was necessary for the plaintiffs to set aside the sale in order to clear the ground for redemption of the mortgage. They finally observe at p. 352 that if the sale is valid until vacated, that is, if the sale is a reality at all, it is a reality defeasible only in the way pointed out by law, as the case fell either within Section 311 (now O 21, Rule 90), Civil P. C., or within Article 12 (a), Limitation Act, 1877, or within both. This case would therefore seem to be a clear authority for the proposition that an erroneous decision by a Court of competent jurisdiction is not open to;collateral attack, and can only be corrected or vacated by proceedings in the nature of a direct attack taken in the manner and within the time allowed by law unlike a decision of a Court wholly without jurisdiction, which can be collaterally attacked as a nullity on account of the absence of inherent jurisdiction over the subject-matter. The test to be applied in deciding a question of this kind is to enquire whether a Court had the power and was under a duty to decide the matter, the wrong decision of which is alleged to make the order a nullity. This indeed was the test applied in Nageswara v. Ganesa A.I.R. 1942 Mad. 675 where the question was whether an order of adjudication passed on a debtor's petition containing a false allegation of residence in Madras made in order to invoke the insolvency jurisdiction of this Court was a nullity, and this objection was put forward in an interpleader suit instituted for determining whether the Official Assignee or a creditor of the insolvent was entitled to a sum of money. The objection was negatived on the ground that the High Court was a Court of competent jurisdiction notwithstanding that the debtor was not in fact a resident of Madras as the question of residence was a matter which the Court was entitled and bound to decide before making the order of adjudication. It was observed:
A distinction has always to be made between competency or jurisdiction to make an order, and the correctness of the order on the merits where the Court had the jurisdiction to decide the question. We are of opinion that the High Court was a Court of competent jurisdiction for the present purpose and notwithstanding the fact that the debtor made a deliberately false allegation that he was a resident within the jurisdiction, the order is not rendered a nullity.
The consequences of a complete absence of jurisdiction have been stated in a number of decisions of the Calcutta High Court, but it is sufficient to refer to one of them only for the purpose on hand. In Rajalakshmi Dassee v. Katyayani Dassee (1911) 38 Cal. 639, Mookerjee and Carn Duff JJ. said:
It is an elementary principle of law that, if a Court has no jurisdiction over the subject-matter, its judgment and orders are mere nullities, and may not only be set aside at any time by the Court in which they are rendered, but be declared void by every Court in which they are presented. Ferguson v. Mohan (1839) 11 A. & E. 179, Briscoe v. Stephens (1824) 2 Bing. 213, Buchanan v. Bucker (1808) 9 East 192, Attorney-General v. Hotham (1823) 27 T. & Rule 209, Perkin v. Proctoer (1768) 2 Wilson 382, Ex parte Thomas Kinning (1847) 4 C.B. 507, Brown v. Compton (1800) 8 T.R. 424. If a Court has no jurisdiction, its judgment is not merely voidable, but void, and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been; if it has no power to hear and determine the case, its authority is wholly usurped and its judgments and orders are the exercise of arbitrary power under the forms, but without the sanction of the law.
The question whether an executing Court is entitled to go behind the decree or question its validity on the ground that the Court which passed it had no jurisdiction over the subject-matter may at first sight look as if they involve an aspect of the doctrine of collateral attack which we are now considering. But such cases do not appear to be germane to the present discussion. Differing views have been expressed on this question by the Madras, Zamindar of Ettiyapuram v. Chidambaram Chetti A.I.R. 1920 Mad. 1019, and the Rangoon High Courts, S.A. Nathan v. S.R. Samson A.I.R. 1931 Rang. 252, on the one hand and the Calcutta High Court on the other, Gorachand Haider v. Profulla Kumar Roy : AIR1925Cal907 and Kalicharan Sinha v. Bhibutibhushan Sinha : AIR1933Cal85 . We doubt whether cases of this type furnish useful guidance, because as pointed out by Wallis C.J. in Zamindar of Ettiyapuram v. Chidambaram Chetti A.I.R. 1920 Mad. 1019 the jurisdiction of the executing Court as such is circumscribed by the words of Section 47, Civil P. C. The matter is besides complicated by the change in the language of Order 21, Rule 7 introduced by the Code of 1908. The following observations of the learned Chief Justice indicate the difference in principle due to the special provisions of the Code:
An objection to the jurisdiction is a ground for setting aside the decree and is not one of those questions relating to the 'execution, discharge or satisfaction of the decree' which are required by Section 47 to be dealt with in execution. The provisions in Section 225 of the old Code that a Court might proceed to execute decrees transferred to it without requiring further proof, among other things, of the jurisdiction of. the Court which passed the decree lent some colour to the view that it was open to a Court to which a decree had been sent for execution to go into the question whether the Court which passed that decree had jurisdiction to do so, and influenced the decisions which are referred to in the order of reference. These words however have been omitted advisedly in the corresponding Order 21, Rule 7 of the new Code.
In the light of the foregoing discussion, it appears to us plain that the decision of the Court below cannot be supported. It is unquestionable that the nature and the value of the subject-matter was such that the suit fell within its jurisdiction. The preliminary decree was no doubt passed on what we may now take it to be an error in that it recognised in the plaintiff a right to a share in the agricultural lands which had not been really conferred on her by the Hindu Women's Rights to Property Act, 1937, as it was wrongly thought. But this error was merely an error of judgment, not touching the jurisdiction of the 'Court, which remained as it was, wholly unimpaired by anything contained in that Act. In this view the decision of the Subordinate Judge must be set aside. The case will now go back to him for the passing of a final decree after such inquiry as may be necessary, by a commissioner or otherwise, in accordance with the declaration of rights made by the preliminary decree.
8. It is only necessary to add that the Court or the commissioner as the case may be should consider afresh the points which require to be determined before the passing of the final decree. The Subordinate Judge's direction that the memo given by defendants 2 and 3 regarding the annual rents of the properties should be preferred to that of the plaintiff is irregular and must be vacated. The commissioner should be left to decide the matter as best as he could, the Court interfering with his findings later, if that is necessary, for a correct decision of the matter. Nor is there any justification for the Subordinate Judge allotting item 12 to defendant 3 at a valuation of Rs. 1500, while the plaintiff was willing to take it at Rs. 1800 and herself face the litigation if there should be any. As we have said the whole matter should be considered afresh. The appellant is entitled to her costs here and in the Court below.