1. This letters Patent appeal is directed against the judgment of Mohan J. dismissing A.S. No 142 of 1973 (Pondicherry), Preferred against the judgment and decree in O. S. No. 5 of 1972 on the file of the principal District Judge, Pondichery.
2. The suit properties originally belonged to one Thirumalai Reddier of Thirubuvanai in Pondicherry State. He had five daughters and one son. One of his daughters is one Kumudavalli who was married in 1930 to one Venkatakrishna Reddier of Kanjanur in Gingy taluk within the State of Tamil Nadu, Thirumalai Reddier by a deed dated 27-6-1933 donated the suit properties to his daughter, Kumudavalli, Kumudavalli died issueless on 23-1-1941, leaving behind her husband, Venkatakrishna Reddier Andalammal, one of the sisters of Kumudavalli, claiming that she is the heir of Kumudavalli, sold the suit properties to one Krishnaswami Reddier on 16-5-1960. Coming to know of the said sale by Andalammal, Venkatakrishna Reddier claiming to be the sole heir of Kumudavalli had in his turn sold the properties to one Muthu Reddier on 19-3-1962.
3. Subsequent to his purchase, Muthu Reddier filed a suit in the court of first instance under French procedure by assignation dated 19-7-1962, for a declaration of his title to the properties and possession against Krishnaswami Reddier and Andalammal. Muthu Reddiar's case in his suit was that Kumudavalli, the original owner of the property, having been a Hindu residing within the French territory, on her death in the year 1941, the properties devolved only upon her husband under the customary law applicable to Hindus in French Territory and that, therefore, Venkatakrishna Reddiar had validly sold properties to him. The case of defendants 1 and 2 Krishnaswami Reddiar and Andalammal was that Kumudavalli ceased to be a French national and became an Indian national as a result of her marriage with an Indian citizen and therefore her properties situate in French territory were subject to French law relating to foreigners and not by the customary Hindi Law as alleged by Muthu Reddiar.
4. The court of the first instance held that Kumudavalli had lost her French nationality on her marriage with Venkatakrishna Reddiar, an Indian National, by the application of Art 19 of Code Civil as modified by law dated 2-6-1889 that consequently Kumudavalli's estate should be governed by the French law as embodies in Art 3(ii) of Code Civil, that if the said Article is to govern the rights of parties, in relation to the suit properties, Venkatakrishna Reddiar as husband of Kumudavalli cannot succeed to the properties, and that in the absence of any descendants or ascendants to Kumudavalli, her sister, Andalammal became entitled to succeed to the properties. In this view the suit came to be dismissed.
5. There was an appeal to the District Court in AS No.34 of 1967. The appellate court disagreed with the view taken by the court of the first instance and held that even as per Art. 19 of the Code Civil as modified from time to time Kumudavalli had not lost her status as a French subject even after marriage and that, therefore, the properties left by her should be governed only by the customary Hindu Law applicable to Hindus in French territory. However, in order to find out whether Kumudavalli's estate devolved upon her husband or upon her sister, under the customary Hindu Law, the appellate Court felt it necessary to have a finding on the form of marriage between Kumudavalli and Venkatakrishna Reddiar. According to the appellate court if the marriage had been performed in Brahma form the husband will be the heir, and on the other hand, if the marriage had been performed in Asura form, Kumudavalli's sister will be the heir. As the trial Court did not give any finding on the aspect, the appellate Court remitted the case to the trial Court for fresh disposal and permitted the parties to adduce evidence on that point.
6. After the remit order the suit was renumbered as O. S. No. 5 of 1972 and withdrawn from the file of the sub-court to the District Court and taken up for trial by the Principal District Judge. He framed the following three issues--
1. Whether the marriage between Kumudavalli and Venkatakrishna Reddiar (vendor of the Plaintiff) was in Brahma form and consequently he inherited the property from his wife?
2. Whether the marriage was in Asura form and consequently her sister defendant 2 (vendor of the first defendant) inherited the property?
3. To what relief is the plaintiff entitled?
The parties adduced oral and documentary evidence as regards the from of marriage between Kumudavalli and Venkatakrishna Reddiar. The trial Court after analysing the evidence, held that the said marriage was in Brahma form and not in Asura form and that, therefore, Venkatakrishna Reddiar alone inherited the suit properties after the death of his wife. In this view the trial Court decreed the plaintiff's suit. There was an appeal by Krishnaswami Reddiar, the first defendant, before this court in A. S. 142 of 1973. In that appeal Mohan, J. upheld the findings of the trial Court that he marriage between Kumudavalli and Venkatakrishna Reddiar was in Brahma form and not in Asura form, and consequently affirmed the judgment and decree of the trial Court.
7. Before us the learned counsel for the appellant seeks to challenge not only the findings given by the trial Court, with reference to the form of marriage, but also the findings rendered by the appellate Court prior to the remand, regarding the nationality of Kumudavalli after her marriage with Venkatakrishna Reddiar. According to the learned counsel for the appellant, the court of first instance. Pondicherry, by its judgment dated 6-8-1966 rightly held that Kumudavalli became a foreign national as a result of her marriage with an Indian citizen so far ass the Pondicherry State is concerned, and therefore, the properties left by her in Pondicherry at the time of her death should be treated property of a foreign national, and if so treated, the sister of Kumudavalli who was a collateral was entitled to succeed to the properties in the absence of any defendants of Kumudavalli.
8. The learned counsel for the respondent would however contend that the view taken by the court of first instance that Kumudavalli lost her French nationality as a result of her marriage with an Indian National has rightly been set aside by the appellate Court by its judgment dated 18-3-1971, and that in any event the said finding having become final as a result of the defendant not having preferred any effective appeal against the remit order wherein that finding was given, it is no longer open to him to canvass the correctness of that finding. Mohan, J. has not dealt with his aspect of the matter. He only dealt with the question as to the form of marriage. He accepted the finding rendered by the trial Court that the marriage was in Brahma form and not in Asura form. On the question of the form marriage, we are satisfied on a close scrutiny of the evidence that the marriage was conducted in Brahma form and that if the personal law applicable to French nationals were to apply. Venkatakrishna Reddiar as the sole heir of Kumudavalli would succeed to her properties. Thus unless the appellant succeeds in setting aside the finding even by the appellate Court in the remand order at the earlier stage that Kumudavalli has not lost her French nationality as a result of her marriage to Venkatakrishna Reddiar, he cannot succeed to the properties. The question is whether the appellant can question the said finding rendered by the appellate Court in this appeal which arises out of the judgment rendered by the trial Court after remand. We are of the view that S. 105(2) of the appellant questioning the correctness of those findings in this appeal. Sec. 105(2) C.P. Code is as follows:--
'Notwithstanding anything contained in sub-s (i), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom. He shall thereafter be precluded from disputing its correctness.'
Order 43, R. 1(u) has provided for an appeal against an order under R. 23 of O. 41, remanding a case, where an appeal would lie from the decree of the appellate Court. Therefore the appellant herein should have filed an appeal against the order of remand passed by the Appellate court on 18-3-1971. If he was aggrieved against the findings rendered in the remit order. The appellant not having appealed against the said remit order the bar under S. 105(2) came into operation and the appellant is precluded from disputing its correctness in the subsequent stages of the same proceedings. It is well established that the finality given under S. 105(2) to an order of remand which is appealable but which has not in fact been appealed against. will apply to the findings rendered in the order of remand as well. In this case the remand was based on the finding that Kumudavalli had not lost her French nationality as a result of her marriage with an Indian national. That finding has become final. It is not, therefore, open to the appellant to question that finding in this appeal arising out of the said order of remand directing a fresh disposal of the suit after giving a finding on the form of the marriage alone.
9. The learned counsel for the appellant, however, relies on a decision in Jasraj Indersingh v Hemraj Multanchand : 2SCR973 , in support of his contention that notwithstanding the fact that the appellant has not filed an appeal against the order of remand passed by the District Judge dated 18-3-1971, he is entitled to canvass the findings therein in the appeal before the High court, as it is a Court superior to that of the District Court which passed the order of remand. In that case, there was an appeal to the Supreme Court against the judgment of the High Court. Certain findings given by the High Court in a remand order at an earlier stage of the proceedings were questioned before the Supreme Court by the appellant. It was argued by the respondent that the appellant cannot question such findings before the supreme Courts as they had became final and binding as between the parties. The Supreme court held that the findings rendered by the High Court in its remit order at the earlier stage will bind the sub-Court as well as the High Court or any other Court of co-ordinate authority hearing the matter at a later stage, but not the Supreme Court while it deals with an appeal from the High Court and that this was because the remit order of the High Court had been passed at an intermediary stage of the same litigation. Though at the first blush the decision appears to support the stand taken by the appellant, on a clear scrutiny, we find that it cannot apply to the facts of this case. There, the remand order passed by the High court at the earlier stage was not appealable to the supreme court under the provisions of the Civil Procedure Code, and therefore, there was no question of the said remit order being challenged in an appeal before the Supreme Court at the earlier stage and of its acquiring finality under S. 105(2) of the Code. Therefore, the principle contain in S. 105(2) of the Code will not apply. Perhaps it is for this reason the Supreme Court has held that as an appellate Court it is entitled to canvass the correctness of the finding rendered by the High Court at an earlier stage in the same litigation. This is obvious from the following observation of the Supreme Court (at p. 1018);
'The appeal before the Supreme Court is from the suit as a whole and. therefore, the entire subject-matter is available for adjudication before us. If, on any other principal of finality statutory conferred or on account of res judicata attracted by a decision in an applied litigation the matter is concluded, we too are bound in the Supreme Court (the underlining is ours). Otherwise the whole list for the first time comes to this Court and the High Court's finding at an intermediate stage does not prevent examination of the position of law by this Court. Intermediate stages of the litigation and the orders passed at these stages have a provisional finality'.
Thus the supreme Court itself recognised the principal that if an order has become final as a result of the statutory provision or by the principle of res judicata, the finality cannot be reopened by the appellate Court including the Supreme Court including the Supreme Court at the subsequent stages of the same litigation. Reference is also made to the decision in Lonankutty v. Thomman : AIR1976SC1645 , by the learned counsel for the appellant. That was also a case where the remand order was passed by the High Court and there was no automatic right of appeal against the remand order to the Supreme Court and therefore, S. 105(2) Civil P.C. was not applicable.
10. In Sitaram v. Sukhadi, : 1SCR836 , the scope of S. 105(2) was directly considered by the Supreme Court. In that case there was an order of remand made by the District Court in an appeal from the decision of the trial court, one of the questions raised before the District Court was as to whether the proceeding, out of which the appeal arose, was or was not barred by limitation. After holding that the period of limitation was to be computed from particular date, a remand order was passed by the District court. There was no appeal against the remand order, but after the trial Court gave its finding on the merits of the rival claims in pursuance of the remand order, an appeal was preferred against that order to the District Court. That appeal having been dismissed, the matter was then taken in second appeal to the High Court. Before the High Court the finding rendered in the remit order by the District Court at the earlier stage on the question of limitation was challenged. The High Court went into the question and expressed an opinion as to from what date the period of limitation is to be computed and ultimately reversed the decree of both the lower Courts. The matter was taken to the Supreme Court and it was urged before that court that the High Court was in error in going behind the findings recorded in the remit order at the earlier stage, that the question as to from what date the period of limitation had to be computed having already been agitated and concluded by the remit order in the earlier appeal before the District Court, the correctness of that finding should not have been permitted to be raised over again. Dealing with the aspect as to whether the findings rendered in the remand order, which has not been appealed against even though an appeal is provided under the Code, could be challenged at a later stage of the proceedings at the appellate stage, the Supreme Court observed that the consequence of an omission to file an appeal against the order of remand which is appealable is indicated in S. 105(2), Civil P.C. that the remand order having been passed by the Dist Court on the basis of its finding on the question of limitation and that basis not having been challenged by filing an appeal; against the remand order, the party affected by that finding is precluded from disputing its correctness, that the High Court in such circumstances should have given due weight to the findings given in the order of remand and that it had committed a very serious error in law in going behind those findings. The principle laid down in the said decision directly applies to the facts of this case.
11. As already stated, the remand order in this case was based on the finding rendered by the appellate Court that Kumudavalli has not lost her French nationality as a result of her marriage with an Indian National and that finding not having been challenged by the first defendant, he is precluded from questioning the correctness of that finding in view of S. 105(2) of the code. We have already held that the form of marriage between Kumudavalli and her husband was in Brahma form and. Therefore, the husband will succeed to the properties of Kumudavalli to the exclusion of her collaterals including the first defendant's vendor.
12. The letters Patent appeal therefore fails and is dismissed. No cost.
13. Appeal dismissed.