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Harihar Dutta Tewari and ors. Vs. Bhim Sanker Dutta Tewari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.226
AppellantHarihar Dutta Tewari and ors.
RespondentBhim Sanker Dutta Tewari
Excerpt:
hindu law - mitakshara, section 9, clause 2, para. 182, whether contains a rule of substantive law--partition--property not included in previous partition suit, whether can be partitioned afterwards. - .....not proved, and, therefore, we must take it that the existence of the property was known at the time of the previous suit, whatever may be the cause for the non-inclusion in that suit. he also found as a fact that the alleged fraud had not been made out, and the question of fraud seems to have been abandoned at the hearing before the high court. then it appears from our judgment and that of the subordinate judge that no question was raised as to there being an identity of causes of action in the two suits. it has been suggested that this admission is not binding in law. i am not inclined to hold that it is a mere point of law but it is a mixed question of law and fact.4. it is argued that this is not a question of procedure at all governed by order ii, rule 2, but that it is a.....
Judgment:

John Woodroffe, J.

1. This is an application for leave to appeal to His Majesty in Council against two concurrent judgments of this Court, and both the value of the subject-matter in dispute and the question whether a substantial question of law is involved must be established.

2. As regards the first point, the land of which possession by partition was sought was valued at Rs. 5,000. It is now stated to be a sum of Rs. 60,000 for the first time for the purposes of this application. Were it necessary to go into this question, we should have to direct an enquiry upon the matter. In my opinion, it is not necessary to go into this matter as the applicant has not made out that a substantial question of law is involved. In my opinion, the only question of law which arises is under the provisions of Order II, Rule 2, having regard to the finding of fact of both Courts.

3. The case set up by the applicant for the non-inclusion in the former suit of the property now sought to be recovered was twofold, namely, ignorance and fraud. The Subordinate Judge found that this allegation of ignorance was not proved, and, therefore, we must take it that the existence of the property was known at the time of the previous suit, whatever may be the cause for the non-inclusion in that suit. He also found as a fact that the alleged fraud had not been made out, and the question of fraud seems to have been abandoned at the hearing before the High Court. Then it appears from our judgment and that of the Subordinate Judge that no question was raised as to there being an identity of causes of action in the two suits. It has been suggested that this admission is not binding in law. I am not inclined to hold that it is a mere point of law but it is a mixed question of law and fact.

4. It is argued that this is not a question of procedure at all governed by Order II, Rule 2, but that it is a question of Hindu Law unaffected by the provisions of Order II, Rule 2. It is an entirely new argument raised before us for the first time and is not traceable in either the judgment of the High Court or the lower Court.

5. We have, however, heard the arguments of the learned Vakil for the applicant. He admits that any processual rule that is found in the Mitakshara is overridden by the provisions of the Code of Civil Procedure, but he contends that it is not a rule of procedure, and that the provisions contained in Clause 1, Section 9, paragraphs 1 and 2, of the Mitakshara are rules of substantive law. I am not disposed to agree with him on this point, but even if his contention were correct that these were not rules of procedure but rules of law, the case does not fall within the rules, for Clauses 1 and 2 of Section 99 of the First Chapter of the Mitakshara refer to cases where the property which was not partitioned was discovered after partition, and it has not been found in the present case that there was any ignorance of these properties as alleged by the applicant. There was, therefore, no such discovery as is referred to in the text of Mitakshara.

6. In the present case both ignorance and fraud have been negatived. I may observe that one of the grounds of appeal refers to the fact that at the time of the previous suit certain parties were minors. It was argued before the High Court on the appeal that Order II, Rule 2, did not apply because there were two minors in the former suit or at any rate it does not apply as against them. The High Court then held, without admitting that there was any substance in the point, that the argument must be disallowed as it was raised for the first time in reply, and that there was no trace to be found in the grounds of appeal. The last statement appears on a reference to the record not to be correct.

7. I may mention that the point has not been argued before us, and I refer to it now only for the purpose of correcting the statement that it is not referred to in the grounds of appeal.

8. In my opinion, therefore, the applicant has not made out that there is any substantial question of law, and it is, therefore, not necessary to go into the question of value.

9. The application is refused with costs, five gold mohurs.

Smither, J.

10. I agree.


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